Legal Trends in Transition

Legal Trends in Transition Educational Services Unit #13 January 29, 2013 Diane S. Bassett, Ph.D. University of Northern Colorado diane.bassett@unco.edu

Essential Questions • Is the special education mandate a “minimal” or “optimal” education? • What is the Rowley case and how is it being reinterpreted… and so what? • What recent cases involve transition principles? • What are the implications of the court decisions? • How have transition principles influenced litigation, legislation, and school practices?

HendrickHudson Central School District Board of Education v. Rowley • Historic 1982 case required educational services providing “some educational benefit” • Precedent for “basic floor of opportunity” (minimal education) to students with disabilities • Does not provide “optimal education” where students can realize their potential -- does minimal mean adequate? • “Cadillac vs. Chevrolet” argument

Rowley Standard, cont. • In 1982, EHA lacked accountability and consistency in the application of education standards; no transition requirements. • Now: Standards are omnipresent and all students are expected to master them. • Some State courts ruling that ‘minimal’ education (‘basic floor’)- not misguided, but illegal and that…. • SWD should receive an “optimal” education. • Education should be purposeful, lead to real-life future outcomes, self-knowledge & self-sufficiency.

Seismic Shift in IDEA 1997: Goal of "access" reached, now Congress seeks to: • Address "low expectations” • Utilize evidence-based methods of teaching • Provide a commitment to “national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency” • Acknowledge a shift of FAPE to access to general ed. curriculum

IDEA 2004 Transition is designedto 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…to prepare [them] for further education, employment, and independent living….

States courts argue: “Minimal is not adequate” • “...prepare students for useful and happy occupations….” (W.Virginia) • “…sufficient levels of academic or vocational skills...to live up to his or her full human potential…” (Alabama) • “…to pursue life work intelligently… (Kentucky) • “…to prepare citizens for role as participants and competitors in today’s marketplace of ideas…” (New Hampshire)

Prior Cases • In 2006, Etcheidt reviewed 36 state admin. & district court rulings related to school-to-postsecondary transition plans (1997-2004) • Male & female, students with LD, EBD, autism or Aspergers, & multiple disabilities

What was found? Identified 5 transition themes at heart of the decisions: • Agency contacts • Student involvement • Individualization of transition plans • District obligations • Appropriateness of transition plans All decisions addressed importance of individualizing transition planning on basis of strengths, needs, preferences, and interests.

AGENCY CONTACTS Districts won cases when they could (a) demonstrate good faith efforts to obtain info. about agency services, (b) include agencies in transition planning, and (c) link parents & students with agency resources. STUDENT INVOLVEMENT Students must attend IEP meeting; but if not, then preferences, interests, concerns must still be considered by the IEP team. Districts need not address every student preference, but team may determine a course of study aligned with interests & services to achieve transition goals.

INDIVIDUALIZATION OF TRANSITION Appropriate courses of study, based on assessed strengths, preferences and interests. Cannot substitute sound, coherent, individualized programs of study with activities such as generic information to students and families. Involve students & parents. Courts can require solutions such as: community- based programming in ‘real world’ settings; functional skill development after graduation with peers.

DISTRICT OBLIGATIONS No guarantees, but district must do more than provide information and help apply to college. Must provide coherent plan of studyand services calculated to provide benefit the student. Fact that student met grad.requirements, did not mean district is relieved of its obligation to provide transition services needed to complete IEP goals (Etcheidt, 2006).

***APPROPRIATENESS OF TRANSITION PLAN When districts failed to provide adequate services in secondary ed mandated to provide and fund compensatory services to students already graduated, or enrolling in college. If districts demonstrated they offered FAPE and ensured successful participation in and completion of IEP goals  compensatory services not required (nor granted).

Court Cases Relevant to Transition Principles • Luke P v Thompson Valley School District, CO (2008) • K.L. v Mercer Island School District, WA (2009) • Dracut School Committee v. Bureau of Special Education Appeals, MA (2010) • Klein ISD v. Hovem, TX (2010) • Jamie S. v. Milwaukee Public Schools, WI (2012)

Luke P. v. Thompson S.D. (2008) A youth with autism Able to do certain skills at school but they did not generalize to home Home behaviors were untenable, including eating, sleeping, dressing, toilet training, and incidences of violence against family members Parents asked for residential treatment center and moved Luke P. to Higashi School in MA, then sued Thompson Valley S.D. for tuition reimbursement

School for Luke Parents moved Luke P. to Higashi School in MA, then sued Thompson Valley S.D. for tuition reimbursement Luke was at Higashi school for four years at a cost of approx. $160k per year. “…all education has as its purpose the advancement of knowledge and skills so that the student can reasonably apply them in other contexts…public schools must accord some educational benefit…must address issues of generalization..”(2005, Due Process Decision)

District Court upholdsALJ and IHO • June 27, 2007 “…while the inability to generalize certain academic skills across environments would not always mean that an IEP is not providing an educational benefit, I must agree with the administrative decision-makers that the lack of generalization of the most basic life skills, such as appropriate behavior, toileting, and eating indicate that the educational benefits received by Luke werede minimis” (p. 17). • IEP inadequate • Least restrictive environ. is Higashi School • Parents provided adequate notice of change of placement

Court of Appeals, 10th Circuit, Overturns District Court Decision August 29, 2008 Generalization is a critical skill for self-sufficiency but IDEA may not attach “essential importance” to it “ Congress did not provide in IDEA a guarantee of self-sufficiency for all disabled persons” Congress established procedures to guarantee disabled students access and opportunity, not substantive outcomes (Rowley Standard) And Now? Parents appealed to U.S. Supreme Court but were denied Luke back at Higashi School but it is unclear who is funding his tuition

K.L and Mercer Island School District (2006) • K.L was a 17 year old with severe learning disabilities that impacted her reading and writing skills. • After several years at Mercer Island S.D, parents unilaterally placed K.L. in Landmark School in MA and sued for tuition reimbursement for her 10th, 11th, and 12th grade years. • Transition goals stated that K.L would attend community college and engage in competitive employment • “…[IDEA ’97] clearly states it commitment to “our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities” • “…IDEA “97 is simply not about ‘Access:’ it is focused on “transition services….an outcome-oriented process, which promotes movement from school to post-school activities…”

Mercer, cont. Court of Appeals, 9th Circuit Decision - August 6, 2009 vacated the District Court’s decision and remanded back to District Court to reapply the Rowley standard “The substantive test of Rowleydoes not require the absolutely best or ‘potential maximizing’ education for the individual child, but the benefit must be real and measurable”

Klein ISD v. Hovem (Texas, 2010) Per Hovem, a twice exceptional student, scored in the 600s on SATs but wrote at 1st grade level Hovem’s parents sent him to Landmark School and sought reimbursement from school district Transition plan judged too general (written expression problems not even addressed) and educational and vocational interests disregarded District ordered to reimburse family for last 2 years of tuition expenses. August 6, 2012, 5th Circuit Court of Appeals considered the case and reversed the District Court’s decision saying the ISD did not fail to comply with IDEA and that “Rowley requires no more.”

Wording from Judge Harmon: "While highlighting his passage of classes ... [the district] downplayed the crucial impact ... [that] an inability to write ... inevitably plays in a person's ability to function in life," “The school district in fact was ignoring that area of continuing weakness, Per's learning disability, and relied on the highly intelligent student's good scores in other areas unaffected by that disability to obscure the fact that over the years KISD was not providing "a 'free appropriate public education that emphasizes special education and related services designed to meet [Per's] unique needs and prepare [him] for further education, employment, and independent living.”

So, Courts are upholding the Rowley Standard. What’s Next? Compensatory Education for Post-school relief ? Compensatory education has been awarded to remedy the denial of FAPE Usually occurs while a child is still in school (e.g., extended school year, intensive therapies, one-on-one)

Considerations for the provision of compensatory education C.E. may be offered or ordered if a district denies FAPE by not developing an appropriate IEP or not implementing it appropriately Remedy should place students in the position they would have been in had FAPE not been denied C.E. must be the type of educational and related services that are part of a K-12 education offered through the district The purpose of C.E. is to remedy the failure to provide those types of services Judges or administrative offices can craft very specific awards detailing what services will be provided, who will provide, and under what timeline

Compensatory ed. cont. For students under 21, compensatory education may mean either "current compensatory education" or "future compensatory education." The former includes extended day programs, extended year services, summer school or tutoring; the latter is essentially a promise now to provide education beyond the student's 22nd birthday.

Dracut School Committee v. Bureau of Special Education Appeals (Massachusetts, 2010) C.A., a student with ADHD, bipolar disorder, Asperger’s Syndrome, and anxiety disorder, claimed inadequate transition services. Hearing Officer and District Court found FAPE was denied IEPs not reasonably calculated to provide meaningful benefit Failure to provide transition assessments until the last IEP and info not utilized from the parents’ assessment Vocational assessment did not address post-secondary education and independent living skills District ordered to issue a diploma and then provide compensatory transition services for 2 years

Assessment was not timely…. “Although Dracut ultimately offered C.A. a five‐month long internship at a credit union located in the high school, a four‐month technology internship, and a gym class mentoring program, it passed most of the relevant two year window without action, failing to assess or provide services to address C.A.’s vocational skills, despite its obligation to do so throughout this period.”

Jamie S. v. Milwaukee Public Schools - June 9, 2009 A class action suit brought before the Wisconsin Department of Public Instruction (DPI) and Milwaukee Public Schools MPS) in 2001 A “class” of former students contended that MPS was negligent in providing timely and appropriate education to each of them Plaintiffs contended they were suspended, or excluded from receiving special education services even upon multiple requests for assessment and placement

Jamie S. V. MPS cont. Both DPI and MPS were found in violation of IDEA (specifically, FAPE) DPI settled with students, MPS was under court order to seek compensatory remedies as specified by DPI

Possibilities for Compensatory Education Relief For students still in school, academic in-school compensatory ed. will be consideredFor students who have aged out of the district, suggestions for compensatory education are very transition-focused: • Tuition and support for postsecondary education • Functional community-based assessments • Training on self-advocacy and self-determination • Job internships • Job placement and training • Job coaching • Life skills training • Life planning assistance • Provision of technology (computers, assistive technology.

7th Circuit U.S. Court of Appeals overturns Jamie S. decision February 3, 2012 Court throws out class certification order from District Court Court vacates the liability and remedial orders that MPS was obligated to follow DPI’s settlement required more of the district than DPI had the statutory right to demand March 5, 2012, new hearing at the Court of Appeals denied

Recent 2012 Rulings Feb. 27 – Horizon Instructional Systems Charter School CA – ALJ ruled that school failed to offer a student with autistic-like characteristics adequate vocational training through his transition plan. The district must conduct a functional assessment of the student and create goals for acquired skills off-campus and in the community.

June 25 – Carrie I. ex. rel. Greg I. v. Dept of Ed. State of Hawaii – Hawaii Dept of Ed. violated IDEA by failing to consider the harmful effects that a public school might have on a student with autism (i.e., darting into busy streets) as well as failing to conduct transition assessments and develop an appropriate postsecondary transition plan.

July 12 – Worthington City S.D. Ohio – Ohio ED said district violated IDEA in facilitating the transfer of age of majority rights to a 17 year old. The transfer was not completed in a timely fashion and consisted only of reading the “transfer of rights” to the student, leaving him still confused about his new adult responsibilities

September 10 – Strongsville City S.D. Ohio – Ohio ED determined that a district failed to provide appropriate and measurable goals and objectives for a student with ADHD (an employment goal targeted the goal of going to college, not the ultimate employment goal therein).Thus, employment and education goals must be specific unto themselves.

Transition Issues addressed in these cases: FAPE Child Find (Jamie S.) Compensatory education Goals addressed in the community Transfer of age of majority Transition assessments Goals and objectives pertinent to post-school goals

The Rowley Standard revisited Hendrick Hudson Central School District Board of Education v. Rowley, 458 U.S. 176, 200, Supreme Court mandated that EHA offers “minimum educational benefit” Basic floor of educational opportunity Cadillac vs. Chevrolet argument Now, 25 years after Rowley, purpose of IDEA has shifted from providing access to educational services to providing meaningful and measurable programs within the context of gen. ed. We may be held to a higher standard today in the provision of educational services and FAPE Yell, Kantsiyannis, and Hazelhorn, 2007

What does it allMean?Perhaps in the future…. • A ‘minimal education’ is no longer an ‘adequate education’ • All students are expected to achieve proficiency on content area standards • Public schools may be expected to provide education that can generalize to other settings • Public schools may be expected to ensure student learning can be used in the future to provide economic self-sufficiency

Crystal Ball for Transition Principles…. • The systematic, cumulative, long-range nature of transition planning/decision-making is not explicit in IDEA, nor well implemented. • High dropout rates, low graduation rates, poor postsecondary outcomes - importance of beginning transition planning within the IEP process as early as possible in secondary ed. • Academic and functional skills must be addressed. • Districts must demonstrate good faith efforts to develop goals and supports that benefit students.

Impacts of the Rulings • Cases such as Luke P. v. Thompson Valley School District (CO) K.L v. Mercer Island School District (WA), and Jamie S. v. Milwaukee Public Schools (WI) sought to extend boundaries of educational purpose, expectations and practice, but ultimately they were overturned. • The Rowley standard is being upheld as the boundaries of educational responsibilities are being drawn ever tighter. • Compensatory education may provide relief to students in school as well as adults who have exited school to receive transition services. To date, there has been no statute of limitations on age.

Recommendations to consider: Conduct appropriate and thorough transition assessments Ensure that academic and skill needs are addressed Develop goals and objectives that relate directly to each post-school goal Work with parents and child to ensure appropriate and thoughtful transfer of adult rights Keep lines of communication open with parents!!!!

“…ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities…..” K.L. v. Mercer Island S.D.

Legal Trends in Transition