Legal Requirements for Transitioning Disabled Students Into Higher Education

1. Legal Requirements for Transitioning Disabled Students Into Higher Education Teri B. Goldman Mickes Goldman O’Toole, LLC 555 Maryville University Drive, Suite 240 St. Louis, Missouri 63141 314-878-5600 tgoldman@mickesgoldman.com

2. Introduction • IDEA and its regulations apply to students with disabilities only until such time as they “age out” at twenty-one or until they graduate from high school with a regular diploma • IDEA’S protections no longer apply to students upon their entry into higher education. Students must look to Section 504 for accommodations in higher education if they qualify.

3. Introduction • Students identified under IDEA may discover that IDEA’s significant support system that enabled them to succeed at the secondary level is not available to them at the collegiate level.

4. Agenda • Discussion of higher education Section 504 requirements, and how they compare to K-12 IDEA requirements. • Discussion of IDEA’s transition requirements and tips for successfully transitioning college-bound IDEA students.

5. Purpose of Law

6. 504 and Otherwise Qualified • With respect to postsecondary and vocational education services, an otherwise qualified individual with a disability is one who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity.

7. Southeastern Community College v. Davis (1997) • U.S. Supreme Court held that nursing school could refuse admission to a deaf applicant because she did not have the requisite skills to be otherwise qualified. • Hearing disability substantially interfered with her ability to understand speech and to participate in the program’s clinical training without very close individual supervision.

8. Davis Case • As stated by the Court, “Section 504 imposes no requirements upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.”

9. Davis Case • Court defined an “otherwise qualified person” as “one who is able to meet all of a program’s requirements in spite of his handicap.”

10. Additional “Otherwise Qualified” Cases • Mershon v. St. Louis University(8th Cir. 2006): finding that student did not demonstrate that he was otherwise qualified, with reasonable specific accommodations, to meet the prerequisites for admission into the graduate school program. The student failed to complete his graduate application, he lacked the necessary undergraduate course work, and his academic performance did not meet the university's admission standard.

11. Additional “Otherwise Qualified” Cases • Falcone v. University of Minn. (8th Cir. 2004): • “The University concedes for purposes of summary judgment that Falcone is disabled. The issues, then, are whether Falcone presented sufficient evidence that he was “otherwise qualified” to remain in medical school but was nonetheless dismissed solely because of his disability.” • Falcone argued that the agreed upon accommodations were imperfectly delivered. The Court held that even if the accommodations were perfectly implemented, Falcone failed to show that, if they had been perfectly implemented, he would have passed the clinical courses. The University presented “abundant evidence supporting its conclusion” that no amount of additional accommodations would have made Falcone “otherwise qualified” to remain in school and receive a medical degree.

12. Definition of Disability

13. Child Find Obligations

14. No Identification Obligation • In contrast to the IDEA and 504 at the K-12 level, Section 504 does not require colleges and universities to initiate a process to identify which students are disabled.

15. No Identification Obligation • Instead, to be liable under Section 504, an academic institution must have, or reasonably be expected to have, knowledge of a student’s disability. • Regulations prohibit higher education institutions that receive federal funds from asking if applicant is disabled. • An applicant can volunteer that information.

16. No Identification Obligation • After an individual has been admitted, school may ask if student is disabled for purpose of providing reasonable accommodation. • School may be put on notice that student is disabled and requires accommodation with less than direct notice.

17. Cases • Nathanson v. Medical College of PA (3rd Cir. 1991): finding sufficient evidence to raise issue of fact as to whether medical college had reason to know plaintiff was disabled where she met with administrator and informed her that she had neck and back injuries that prevented her from attending class even where disability not visibly obvious and plaintiff did not direct request for accommodation. But see, • Texas Woman's University (OCR Region VI-TX 2000): even though student's materials mentioned that she had a learning disability, failure to request accommodations absolved university from liability.

18. Cases • Smith v. Univ. of State of NY (NY 1997):holding that student’s failure to notify office of student disabilities of fact that he was diagnosed with clinical depression was irrelevant in light of his statement to professor that he was disabled. But see: • Kaltenberger v. Ohio College of Podiatric Medicine (6th Cir. 1998): student’s statement to academic advisor that she believed she may have ADHD triggered no ADA obligation by the college; • The New School for Social Research (OCR Region II-NY 1998): student’s indication to advisor that he had suffered two car accidents was insufficient notice that he was seeking Section 504 accommodations.

19. Initial Eligibility

20. Eligibility • In higher education, student is responsible for providing documentation of a substantially limiting impairment. • LaMarca v. Capella University (C.D. Calif. 2007): court rejects former student’s assertion that the university was barred from requiring him to produce documentation of his alleged disability;

21. Cases • Kaltenberger v. Ohio College of Podiatric Medicine (6th Cir. 1998): physician’s note diagnosing student as having ADHD insufficient; independent evaluation justified when conflict in documentation; no duty to accommodate absent authoritative diagnosis. • Notre Dame University (OCR Region V 2005): university justified in refusing to provide accommodations until student provided sufficient documentation; therapist’s note received two days before end of classes that she was treating student for anxiety and he should receive extended time in quiet area held insufficient.

22. Cases • Western Nebraska Community College (OCR Region VII-NE 2000): resolution agreement – if college disputes existence of disability or necessity of course substitution it may conduct own assessment at its cost. • Community College of Southern Nevada: (OCR 2000): upholding college requirement that assessment information be documented on letterhead and that student authorize disability services office to communicate with evaluator as condition of receipt of accommodations.

23. 2008 ADAAA: • The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” • The question of whether an individual’s impairment is a disability should not demand extensive analysis. • No cases yet. No determination yet as to what type of documentation will be considered sufficient now.

24. Re-Evaluations

25. FAPE v. Reasonable Accommodation

26. Reasonable Accommodations • 504 (at the higher education level) requires the following with respect to academics: • A recipient…shall make such modification to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student.

27. Reasonable Accommodations • Academic requirements that the recipient can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.

28. Reasonable Accommodation • In contrast…IDEA’s reach is more expansive and requires public school districts to take all steps (including individualized modifications to curriculum or instruction) that a particular child needs to receive FAPE even if such services would substantially alter the district’s educational program.

29. Related Services

30. Auxiliary Aids • Must take steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

31. Auxiliary Aids • May include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions.

32. Auxiliary Aids • 1997 Davis Case: the federal regulation “explicitly excludes ‘devices or services of a personal nature’ from the kinds of auxiliary aids” that an institution must provide and, therefore, concluded that the school was not required to give “close, individual attention” to the plaintiff as a means to enable her to take part in the clinical program. • Thus, need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.

33. Cost as a Factor

34. Cost as a Factor • Courts have allowed colleges to cite costs and the effect on academic program as factors in denying requested services. • But, must have assessed the situation and come to a justifiable reason for denying a student’s request.

35. Cost as a Factor • As one court has stated, “[i]f an institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty of seeking reasonable accommodation.”

36. IDEA Transition Requirements and Tips for Success

37. IDEA Summary of Performance • In lieu of evaluation prior to graduation with a regular diploma or aging out, the LEA must provide the student with a summary of academic achievement and functional performance including recommendations on how to assist the child in meeting the post-secondary goals.

38. Summary of Performance Obligations • The regulations should not require LEAs to conduct evaluations for children to meet entrance or eligibility requirements of another institution or agency (such as Voc Rehab or colleges). To do so would impose a significant cost on LEAs that is not required by the IDEA. • Commentary to 2006 Regulations

39. Summary of Performance:Obligations • Other than recommendations on how to assist the child in meeting his/her postsecondary goals, the IDEA does not otherwise specify what information must be included. Accordingly, state and local officials have the flexibility to be determine the appropriate content to be included in a child’s SOP, based on the child’s individual needs and postsecondary goals. • OSEP, June 2009

40. Summary of Performance Obligations • The IDEA does not require the SOP to include the child’s need for accommodations in college or in other postsecondary educational settings. However, the SOP may include information that may assist another entity to determine a student’s eligibility for services of accommodations under Section 504. • OSEP, June 2009

41. Summary of Performance Tips • Keep in mind the purpose of the SOP. • Who should prepare the SOP? • Should list the student’s skills and interests. • Can list the accommodations, modifications or assistive technology that were essential for the student in high school and an explanation of why they were necessary.

42. Transition Plan • 2004 IDEA – beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter, the IEP must include: • Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills; and • The transition services (including courses of study needed to assist the child in reaching those goals.)

43. Transition Services • A coordinated set of activities that is designed to be within a results-oriented process that is focused on improving the academic and functional achievement of the child to facilitate the child’s movement from school to post-school activities and is based on the individual child’s needs, taking into account the child’s strengths, preferences and interests; and

44. Transition Services • Includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

45. IDEA Regulations Commentary • If the IEP team determines that a student’s needs can best be met through participation in transitional programs on college campuses or in community-based settings and includes those services in the IEP, IDEA dollars can be used for that purpose.

46. IDEA Regulations Commentary • The IDEA requires the SEA to ensure that an interagency agreement is in effect between the SEA and non-educational agencies in order to ensure that services are provided. If the other agency fails to provide services, the LEA must reconvene the team to develop alternative strategies.

47. The IEP and Transition • Preparing disabled students for post-secondary education is one of the reasons for transition services under the IDEA. Yankton Sch. Dist. v. Schramm (8th Cir. 1996). • When determining what postsecondary goals to address, districts must look to the child’s individualized needs, and not exclusively to the severity of the child’s disability. • While including employment goals in the IEPs of some students with severe disabilities…may be upsetting to their parents, IDEA does not provide an exception for this requirement based on the severity of the child’s disability. The only area in which post secondary times are optional at the IEP team’s discretion is in the area of independent living skills. OSEP, August 2009.

48. Case Law • High v. Exeter Township Sch. Dist. (E.D. PA 2010): IDEA does not require a student’s transition plan to dictate his/her IEP goals. Here, though the student’s postsecondary goal is to attend college, it would have been inappropriate to develop an IEP goal that would have her go from a fourth grade reading level to a 12th grade reading level by the time she graduated. “While the District helped Stephanie realize she wanted to go to college, the District was not required to ensure she was successful in fulfilling this desire. The IDEA is meant to create opportunities for disabled children, not to guarantee a specific result.”

49. Case Law • Natick Public Schools(MA SEA 2010): The District’s proposed transition program did not offer the academic instruction and social opportunities the student required in order to learn to live independently. The program only allowed peer interaction with two other disabled students, both of whom functioned at a lower cognitive level. • Alba-Golden Indep. Sch. Dist. (TX SEA 2009): Placing a student in a community based retail store setting twice a week aligned with a valid post-secondary goal of obtaining part-time employment.

50. Transition Plan/Services Tips • Be sure to obtain consent to invite other agencies to student’s IEP meetings where transition will be discussed. • Be sure to invite the student and/or otherwise seek his/her input into the transition plan/services. • Be sure to write measurable transition goals. • Be sure to consider social interaction opportunities, if appropriate, when determining placements in community groups and other work environments. • Address all areas and independent living skills, if appropriate.