Overview

Transition Planning and Services:

January 03, 2013

By Daniel T.S. Heffernan

If there is one area in which the law has gotten stronger on the side of students with disabilities in the last ten years, it is in the area of transition. When the cornerstone federal statute, the Individuals With Disabilities Education Act, was reauthorized in 2004, it and resulting regulations emphasized successful transition to post school life as an important goal of the education of children with special needs. School districts are now required to begin transition planning when the student turns fourteen years old and IEPs thereafter must include a post-school vision and incorporate “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills.” 20 U.S.C section 1414(d)(1)(A)(i)(VIII)(aa)). Transition services are to be coordinated, results oriented, and based on the individual student’s strengths, preferences and interests.

The litigation that resulted over the provision of appropriate transition has clarified the required components of transition services. In a case recently decided by the Massachusetts Bureau of Special Education Appeals and currently under appeal in federal court, Dracut Public Schools, BSEA #08-5330, 15 MSER 78 (2009), the hearing officer strongly reiterated the responsibilities of a school district to focus meaningful attention on non-academic goals and prepare a student for independent living, employment and/or post secondary education. The district was taken to task for not conducting adequate assessments of the student in the area of transition, relying instead on the pro forma completion of transition planning forms. In Dracut, the school district was ordered to provide compensation in the form of two additional years of meaningful transition services despite the fact the student had passed MCAS and was eligible for his high school diploma.

Other factors have combined with the law to make transition services and planning an extremely “hot” area. First, the improvement in the education of children with disabilities has led to an expectation of a more meaningful and fulfilling post school life. Second, special education law accords children with special needs a strong entitlement to services from school districts until that child graduates from high school or turns twenty-two years old. The reality in times of extreme budget crises and the ever present vagaries of the availability of adult services is that the best source of transition services, through either the direct provision of those services or funding of those services, is the school district. Whereas the Department of Developmental Services may develop a fabulous post secondary program for your child, there is, in reality, no real entitlement to that program and little recourse if it was suddenly eliminated for budgetary or other reasons. A school district’s ability to restrict or eliminate programs and services is constrained by federal and state law. In my practice, I often advise parents to hold onto the eligibility of special education services as long as possible, even in some situations by refusing a high school diploma.

Some school districts have attempted to trivialize or eliminate non-academic goals in IEPs to lessen their obligation to provide services to meet those goals. Others have made a strong effort to “push” children off the school rolls by offering diplomas when further services are necessary.

Fortunately, these factors have spawned a boom in transition programs. Private programs have sprung up or expanded, and parents have been successful in getting school districts to partially or fully fund these programs when the school district’s transition programs have been inadequate. Many school districts, even those strapped for cash, have hired transition specialists, vocational experts, and the like to focus resources on developing or improving their home grown transition services motivated, in part, by the desire to avoid having to fund outside placements.

It is crucial that good transition planning begin early – at the latest when the student turns fourteen. The Federation for Children with Special Needs (www.fcsn.org) is one organization that offers excellent workshops throughout the year on transitions. Having good evaluations in the areas of transition, vocational and neuropsychological is key in crafting an effective and appropriate transition plan for the student. The school district is obligated to provide evaluations in these areas and you have a right to obtain an independent evaluation if dissatisfied with those evaluations or in areas the school district has failed to evaluate and, in some circumstances, have the school district fund those independent evaluations. To prevail in a dispute with a school district over transition, or any other services, independent experts retained by the family is essential. You always have the right to have your child evaluated at your own expense (or possibly covered by your health insurance) by whoever you wish, including a reasonable opportunity to have any current or proposed program observed by those experts.

Know your rights about transition services. My firm’s website (www.kcslegal.com) has articles on special education including summaries of key decisions in special education law that include transition cases. The Massachusetts Department of Elementary and Secondary Education (www.doe.mass.edu) has links to advisories and special education law and decisions in the area of transition. First and foremost, be aware that you have strong rights to have meaningful and comprehensive transition planning and services for your child and there are many great ideas and programs emerging in the areas of transition.

Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is eighteen years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com.

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