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Policy Update

Summarizing recent laws and federal regulations

June 2002 • Vol. 1, Issue 1


IDEA 1997: Implications for Secondary Education and Transition Services

This is a revision of Policy Update, January 2000, National Transition Network (NTN)

In May 1997, Congress passed, and on June 4, 1997, President William Clinton signed into law the Individuals with Disabilities Education Act Amendments of 1997 (IDEA, P.L. 105-17). The IDEA Amendments of 1997 serve to amend the Individuals with Disabilities Education Act of 1990. Final regulations were published in the March 12, 1999, Federal Register (Vol. 64, No. 48, pp. 12406 - 12672) and took effect May 11, 1999. Several sections of the regulations pertain to the transition of students from school to adult life. Eleven such important sections of IDEA concern: (1) purposes, (2) definitions, (3) free appropriate public education, (4) students with disabilities in adult prisons, (5) student assessment participation, (6) student notification and participation, (7) parent notification and participation, (8) agency notification and participation, (9) content of the Individual Education Program (IEP), (10) agency responsibilities, and (11) transfer of parental rights. The purpose of this policy update is to present the regulatory language and describe some of the potential implications in these 11 areas.

1. Purposes (Section 300.1)

The purposes of this part are —

a. To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

b. To ensure that the rights of children with disabilities and their parents are protected.

Authority: 20 U.S.C. 1400

The explicit statement that special education and related services are intended to prepare students for employment and independent living makes it clear that educators, parents, and students must consider adult outcomes as they plan for students’ school experiences.

2. Definitions (Section 300.29)

a. As used in this part, transition services means a coordinated set of activities for a student with a disability that —

(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) Is based on the individual student’s needs, taking into account the student’s preferences and interests; and
(3) Includes —
(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 functional vocational evaluation.

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

Authority: 20 U.S.C. 1401 (30)

At a minimum, the IEP team should consider each of the areas including instruction, related services, community experiences, and development of employment and other post-school, adult-living objectives. In many cases, each of these areas, and possibly some others, will be included in students’ IEPs. However, while the previous regulations associated with the 1990 Individuals with Disabilities Education Act required that IEP teams provide a written statement describing the basis upon which any of the first four transition areas were not included in the IEP, the present regulations do not require this to be included in the IEP. Transition services may be provided by the education agency or, as outlined in Section 300.348 of the regulations, by agencies outside the school. In either case, they must be written into the IEP and the responsible agency noted.

3. Exception to FAPE for Certain Ages (Section 300.122)

IDEA has always made it clear that there are some possible exceptions to the requirement to provide a free appropriate public education (FAPE) for some students of transition age; IDEA 1997 further clarifies this area —

a. General. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following:

(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in one or more of those age groups.

Parents must be aware of State laws regarding the age at which the right to public education terminates. In those States where education agencies’ responsibilities end at age 18, it is imperative that transition planning begin as early as necessary to have adult services commence at age 18. If a student is not eligible for adult services, then it is important that the student is as prepared as possible to enter the workforce or postsecondary education at age 18. For some students, this might require a heavy emphasis on the skills needed to transition successfully for several years prior to leaving school.

According to Section 300.122, some students with disabilities who are incarcerated are not entitled to FAPE. This group includes —

(2) (i) Students aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility—
(A) Were not actually identified as being a child with a disability under Section 300.7; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not apply to students with disabilities, aged 18 through 21, who—
(A) Had been identified as a child with a disability and had received services in accordance with an IEP, but who left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who had actually been identified as a “child with a disability” under Section 300.7.

Thus, if prior to incarceration a student had been receiving special education services but had dropped out of school or had been formally identified as a “child with a disability,” they are still entitled to FAPE and to the transition services that it entails. In fact, transition planning may be particularly important for this group of students, given the high unemployment and recidivism rates among dropouts and incarcerated youth.

It is important for parents and educators to know that if a child graduates from high school with a regular high school diploma, the child is no longer entitled to FAPE (and therefore no longer entitled to transition services) according to Section 300.122(a)(3)(i). According to that section, FAPE does not apply to —

(3) (i) Students with disabilities who have graduated from high school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not apply to students who have graduated but have not been awarded a regular high school diploma.
(iii) Graduation from high school with a regular diploma constitutes a change in placement, requiring written prior notice in accordance with Section 300.503.

Given this language, it is critical that receipt of a regular high school diploma be carefully considered. In some cases, it may be advisable to delay formal receipt of a regular high school diploma until all transition service requirements have been met or until students have been connected with the adult services necessary to support their post-school education, employment, and independent living needs.

In each of the cases discussed in this section, the State must have on file a copy of all documents related to exceptions. Section 300.122(b) States —

b. Documents relating to exceptions. The State must have on file with the Secretary —

(1) (i) Information that describes in detail the extent to which the exception in paragraph (a)(1) of this section applies to the State; and
(ii) A copy of each State law, court order, and other documents that provide a basis for the exception; and
(2) With respect to paragraph (a)(2) of this section, a copy of the State law that excludes from services (under Part B of the Act) certain students who are incarcerated in an adult correctional facility.

Authority: 20 U.S.C. 1412(a)(1)(B)

If parents or educators have questions concerning these exceptions, they should contact their State educational agency.

4. Requirements for Students with Disabilities in Adult Prisons (Section 300.311a FAPE)

Students with disabilities who are incarcerated in adult prisons may not be eligible to receive transition services if their entitlement ends before they will be eligible to be released from prison.

a. Requirements that do not apply. The following requirements do not apply to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons —

(1) The requirements contained in Section 300.138 and Section 300.347(a)(5)(i) (relating to participation of children with disabilities in general assessments).
(2) The requirements in Section 300.347(b) (relating to transition planning and transition services), with respect to the students whose eligibility under Part B of the Act will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.

Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6)

5. Student Assessment Participation and Agency Reporting (Section 300.138-139)

Participation in State and district-wide assessments is new in IDEA 97. The associated requirements for participation in State and district-wide assessments and reporting of regular assessment and alternate assessment results for students with disabilities support the belief that the educational system is to take responsibility for the results of educational services provided to students with disabilities.

For participation in assessments, Section 300.138 addresses both regular State and district-wide assessments and alternate assessments —

The State must have on file with the Secretary information to demonstrate that —

a. Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations and modifications in administration, if necessary:

b. As appropriate, the State or Local Education Agency (LEA) —

(1) Develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs;
(2) Develops alternate assessments in accordance with paragraph (b)(1) of this section; and
(3) Beginning not later than July 1, 2000 conducts the alternate assessments described in paragraph (b)(2) of this section.

Authority: 20 U.S.C. 1412(a)(17)(A)

For reporting, Section 300.139 clarifies the ways in which data for students with disabilities is to be publicly reported. This is in addition to the reporting of results required in the section on Performance Goals and Indicators. According to the regulations on public reporting of assessment results —

a. General. In implementing the requirements of 300.138, the State Education Agency (SEA) shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of children without disabilities, the following information —

(1) The number of children with disabilities participating —
(i) In regular assessments; and
(ii) In alternate assessments.
(2) The performance results of the children described in paragraph (a)(1) of this section if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children —
(i) On regular assessments (beginning not later than July 1, 1998); and
(ii) On alternate assessments (not later than July 1, 2000).

b. Combined reports. Reports to the public under paragraph (a) of this section must include —

(1) Aggregated data that include the performance of children with disabilities together with all other children; and
(2) Disaggregated data on the performance of children with disabilities.
c. Timeline for disaggregation of data. Data relating to the performance of children described under paragraph (a)(2) of this section must be disaggregated —
(1) For assessments conducted after July 1, 1998; and
(2) For assessments conducted before July 1, 1998, if the State is required to disaggregate the data prior to July 1, 1998.

Authority: 20 U.S.C. 612(a)(17)(B)

All of the requirements related to participation in assessment and public reporting of results are related to transition as they provide a public way of documenting how well students are doing in relation to the general curriculum as reflected in these large-scale assessments.

6. Student Notification and Participation (Section 300.344b)

Final regulations implementing IDEA require that for students, beginning no later than 14 years of age (or earlier if deemed appropriate), one of the purposes of the annual meeting will always be a discussion of transition services needs. Beginning at least by age 16, the discussion will also focus upon planning for needed transition services. In both these instances, the final regulations require that students be invited to attend their IEP meeting if a purpose of the meeting will be the consideration of the student’s transition services needs, the needed transition services, or both —

(1) Under paragraph (a)(7) of this section, the public agency shall invite a student with a disability of any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration of —
(i) The student’s transition service needs under Section 300.347(b)(1);
(ii) The needed transition services for the student under Section 300.347(b)(2); or
(iii) Both.

The requirement to involve students in the discussions of their future goals and plans reflects the values of self-determination and shared responsibility. It may, however, challenge parents and professionals to change procedures and develop strategies to ensure that students are given an active and meaningful voice in the planning of their future. For many students this will mean that well before the IEP meeting, both in and out of school, they must participate in activities designed to enhance their knowledge base and decision-making and communication skills. The final regulations go on to State in Section 300.344(b)(2) —

(2) If the student does not attend the IEP meeting, the public agency shall take other steps to ensure that the student’s preferences and interests are considered.

In conditions under which a student would not attend her or his IEP meeting, steps must be taken to ensure that the student’s preferences and interests are considered. One example might be to collect information from the student and informed family members, friends, and professionals, and to present that information at the meeting. In these situations, it is useful to have advocates or representatives of the student in attendance at the IEP meeting to ensure that the needs and preferences of the student are considered.

7. Parent Notification and Participation (Section 300.345)

With regard to parent notification of the IEP meeting, Section 300.345(b)(2) and (3) of the regulations State —

(2) For a student with a disability, beginning at age 14, or younger, if appropriate, the notice must also —
(i) Indicate that the purpose of the meeting will be the development of a statement of the transition services needs of the student required in Section 300.347(b)(1); and
(ii) Indicate that the agency will invite the student.
(3) For a student with a disability, beginning at age 16, or younger, if appropriate, the notice must —
(i) Indicate that a purpose of the meeting is the consideration of needed transition services for the student required in Section 300.347(b)(2);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a representative.

Ensuring parents are informed in advance that transition issues will be discussed at the IEP meeting provides them with the opportunity to prepare for discussion. Preparation might include thinking about future goals for their son or daughter. They may also want to invite friends, community members, or others who could provide support for their child as they move into adult life. By knowing that their son or daughter will be invited, parents have the opportunity to discuss transition goals and activities with their child, and to ask school personnel to utilize strategies for maximizing the student’s participation in the IEP meeting. With an understanding of the agencies to be invited, parents can request that additional or alternate agencies be included. They may also want to request information about the services and policies of the invited agencies.

8. Agency Notification and Participation (Section 300.344)

Section 300.344(b)(3)(i) states —

(3) (i) In implementing the requirements of Section 300.347(b)(2), the public agency also shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.

The requirement to involve agencies responsible for providing or paying for services reflects the values of long-term, child-centered planning; coordination; and shared responsibility. It places responsibility on school personnel to become knowledgeable about the services and policies of community agencies. The agencies, in turn, should expand their role to include interaction with students who are still in school. These agencies might include: vocational rehabilitation, employment and training, mental health, mental retardation/developmental disabilities, social security, housing, recreation, and others relevant to the individual needs and preferences of the student. The regulations further state —

(3) (ii) If an agency invited to send a representative to a meeting does not do so, the public agency shall take other steps to obtain the participation of the other agency in the planning of any transition services.

Although not specified in the law, these steps might include, forwarding a copy of the IEP to the agency (with parent and student approval), arranging for a subsequent IEP meeting to discuss transition specific issues, involving advocacy groups, maintaining contact with the agency to promote involvement, and encouraging parents and students to initiate contact and request involvement.

9. Content of the IEP (Section 300.347b)

Appendix A to Part 300 of IDEA final regulations (p. 12470) states —

The IEP requirements under Part B of the IDEA emphasize the importance of three core concepts —

(1) The involvement and progress of each child with a disability in the general curriculum including addressing the unique needs that arise out of the child’s disability;
(2) The involvement of parents and students, together with regular and special education personnel, in making individual decisions to support each student’s (child’s) education success; and
(3) The preparation of students with disabilities for employment and other post-school outcomes.

Once again, preparation for employment and post-school results is central to IEP development and should help to focus the IEP beginning at least by age 14, or earlier if deemed appropriate. According to Section 300.347(b) —

b. Transition services. The IEP must include—

(1) For each student with a disability beginning at age 14 (or earlier if determined appropriate by the IEP team) and updated annually, a statement of the transition service needs of the student under applicable components of the student’s IEP that focuses on the student’s courses of study (such as participation in advanced placement courses or a vocational education program); and
(2) For each student, beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.

The requirement at Section 300.347(b)(1) focuses attention on how the child’s educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school. For example, for a child whose transition goal is a job, a transition service need might be teaching the child how to use public transportation. Thus, beginning no later than age 14, the IEP team, in determining measurable annual goals (including benchmarks or short-term objectives) and needs for a student, must determine what instruction and educational experiences will assist the student to prepare for transition from secondary education to postsecondary life.

A statement of transition services needs should relate directly to the student’s goals beyond secondary education, and show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition services needs connected to technology course work, while another student’s statement of transition services needs could describe why public bus transportation training is important for future independence in the community.

A disproportionate number of students with disabilities drop out of school before they complete their secondary education. By beginning to discuss transition at least by age 14, it is hoped that the IEP team will work with each student and the student’s family to select courses of study that will be meaningful to the student’s future and motivate the student to complete his or her education.

Section 300.347(b)(2) States that by age 16, the IEP must include a statement of needed transition services, including, if appropriate, interagency responsibilities or any needed linkages. Transition services means a coordinated set of activities, designed within an outcome-oriented process, that promotes movement from school to post-school activities.

10. Agency Responsibilities (Section 300.348)

Given the complexity and long-term nature of transition, it is generally clear that neither families, schools, adult service providers, State agencies, nor postsecondary institutions can carry the entire fiscal, programmatic, or planning responsibility. As such, IDEA seeks to involve the student, family, school, and outside agencies in the planning process to increase the likelihood of smooth transitions from school to other service systems and post-school settings.

In addition to inviting representatives of outside agencies to the IEP meeting when transition is being discussed, the final regulations implementing IDEA require the IEP to contain a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages. This section should also include a commitment by the participating agency to meet the financial responsibility associated with provision of services. This is most important if a State or local agency other than the school is responsible for providing or paying for needed services.

To further elaborate on the shared responsibility for transition services, Section 300.348(a)(b) incorporates a statutory provision —

a. If a participating agency, other than the public agency, fails to provide the transition services described in the IEP in accordance with 301.347(b)(1), the public agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.

b. Nothing in this part relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.

Authority: 20 U.S.C. 1414(d)(1)(A)(vii)

This section helps to ensure that the public agency responsible for the student’s education will take necessary steps to see that each student with a disability receives needed transition services. In this case, a participating agency is defined as a State or local agency, other than the public agency responsible for the student’s education, that is financially and legally responsible for providing transition services to the student (Section 300.340).

Alternative Strategies

The IEP team may be able to identify alternative strategies without changing the student’s IEP. In other instances, the IEP team may decide to revise the IEP, changing goals, short-term objectives, timelines, or statements about agency responsibility. For example, a student’s IEP specifies that a community residential placement is needed within the next three months. If a community residence is not accessed by that time, the team would meet again to discuss the delay and to ascertain the status of access to service. It may be that waiting lists indicate a six-month wait, but the likelihood of accessing services is high. In that case, the IEP team may decide to lengthen the timeline and meet in another three months to discuss progress. If the indication is that a community residence is not a likely possibility for this student due to lack of availability, eligibility, or other reasons, the team may try to come up with other strategies to achieve the same goal. These strategies may include creative use of social security and other funds to purchase or rent housing, pooling resources of young adults with similar needs (both with and without disabilities), or eliciting the assistance of advocacy or lobbying groups.

The provisions of Section 300.347 clearly do not imply that the burden of services, programs, or financial responsibility falls solely on the educational agency when things do not turn out as planned. By giving parents and students a means to reengage with the planning team when things go wrong, the provision seeks to prevent students “falling through the cracks” with no place to go for assistance and advocacy. Ingenuity, creativity, and a willingness to jointly seek alternative solutions are needed when initial plans or strategies fail to materialize. The strength of this provision relies on the existence of local or State interagency agreements that clearly delineate the financial and legal responsibilities of agencies involved in transition services. Without such agreements, the reconvention process may be ineffectual.

11. Transfer of Parental Rights (Sections 300.347(c) and 300.517)

The regulation provision that allows for the transfer of parental rights to students at the majority age under State law is a further recognition of the importance of the school’s responsibility in assisting students to move from school to the adult world. In a State that transfers rights at the age of majority beginning at least one year before a student reaches the age of majority, under State law, the student’s IEP must include a statement that the student has been informed of his or her rights under Part B of the Act, if any, that will transfer to the student on reaching the age of majority. In addition, when the student reaches the age of majority, if rights transfer, the school must provide any notice required by Part B regulations to both the student and parents.

Certain exceptions exist as specified by Section 300.122(a)(2) —

a. Exception to FAPE for certain students. Except as provided in §300.122(a)(2)(ii), the obligation to make FAPE available to all children with disabilities does not apply with respect to students aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility —

(1) Were not actually identified as being a child with a disability under §300.7; and
(2) Did not have an IEP under Part B of the Act.

The final regulations at Section 300.517 state —

a. General. A State may provide that, when a student with a disability reaches the age of majority under State law that applies to all students (except for a student with a disability who has been determined to be incompetent under State law) —

(1) (i) The public agency shall provide any notice required by this part to both the individual and the parents; and
(ii) All other rights accorded to parents under Part B of the Act transfer to the student; and
(2) All rights accorded to parents under Part B of the Act transfer to students who are incarcerated in an adult or juvenile, State, or local correctional institution.
(3) Whenever a State transfers rights under this part pursuant to paragraph (a)(1) or
(a)(2) of this section, the agency shall notify the individual and the parents of the transfer of rights.

b. Special rule. If, under State law, a State has a mechanism to determine that a student with a disability, who has reached the age of majority under State law that applies to all children and has not been determined incompetent under State law, does not have the ability to provide informed consent with respect to his or her educational program, the State shall establish procedures for appointing the parent, or, if the parent is not available another appropriate individual, to represent the educational interests of the student throughout the student’s eligibility under Part B of the Act.

Authority: 20 U.S.C. 1415(m)

The above special rule is for students who may not be able to give informed consent related to their educational program, although they have not been determined incompetent under State law. If a State has such a mechanism that applies when it transfers rights at the age of majority, it must establish procedures for appointing parents (or another, appropriate individual if parents are unavailable) to represent the student’s interests.

This new provision of IDEA 97 underscores the importance of empowering students with disabilities to become more knowledgeable and skilled in expressing their needs, preferences, and aspirations. This provision should also encourage educators and parents to ensure that appropriate opportunities and supports are available to students that promote self-determined behavior and attitudes well before the transition process and transfer of rights occur.

Conclusion

The above discussion and many of our examples in this Policy Update are based on effective practices observed in localities and States throughout the nation. These practices should not necessarily be interpreted as required by law. We encourage individual State agencies, in collaboration with other State and local organizations, and parent and consumer groups to actively engage in discussions regarding provisions of the Individuals with Disabilities Education Act Amendments of 1997 (IDEA. P.L. 105-17).

References

Thurlow, M.L., Elliott, J.L., & Ysseldyke, J.E. (1998). Testing students with disabilities: Practical strategies for complying with district and state requirements. Thousand Oaks, CA: Corwin Press.

Thurlow, M.L., & Johnson, D.R. (2000). High stakes testing of students with disabilities. Journal of Teacher Education, 51 (4), pp. 305-314.

Storms, J., O’Leary, E., & Williams, J. (2000). Transition requirements: A guide for states, districts, schools, universities, and families. Minneapolis, MN: Institute on Community Integration, University of Minnesota (http://ici.umn.edu/).


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