by Bill Crane, Esq.
This is one of occasional postings on special education law and practice.
On July 14, 2016, the Mass. Dept. of Elementary and Secondary Education (or DESE) issued an advisory on transition services for the express purpose of improving outcomes for students with disabilities and promoting compliance with state and federal special education laws. The advisory is one of several that discuss and explain transition planning and services. The July 14th advisory focuses on the provision of transition services, while previous advisories addressed transition assessments, transition goals, and the age (14 years old) when transition services must begin.
This is the first of two postings. This posting (part I) introduces the definition and purpose of transition services and then explores many of the substantive principles found within the July 14th DESE advisory on transition services. References to federal special education law are included as needed to complement what is in the advisory.
The second posting (part II) will discuss the importance of transition services and why transition services are an essential part of a student’s right to a free appropriate public education (or FAPE). The posting will also explore the following three topics that were briefly referenced in the advisory: (1) accessing institutions of higher education, (2) developing self-determination skills, and (3) learning communication and social skills. The posting will also include an appendix with the federal special education laws and regulations relevant to transition planning and services, including a brief analysis. The second posting (to be entitled “Transition Services — Part II”) will likely appear on the MAC blog in October 2016.
We have also written a one-page summary of the DESE advisory, suitable for lay readers, that is posted on the transition services section of the MAC website at the following link: http://massadvocates.org/wp-content/uploads/Summary-of-DESE-advisory-on-Transition-Services-9-27-16-Final.pdf
A. Definition of Transition Services
Using language found within the Individuals with Disabilities Education Act (or IDEA), the DESE advisory defines transition services as a “coordinated set of activities within an individualized, results-oriented process, designed to improve each student’s academic and functional achievement to prepare that student for life after high school.” (See advisory, page 1.)
Transition services, which begin no later than age 14, may include a wide variety of education services, experiences and instructional opportunities that are specially designed to teach transition skills to older students — for example, instruction or job coaching provided in competitive job sites, or instruction provided in the community focused on communication, social or independent living skills.
Transition services can include the full range of special education and related services considered for students of all ages. And, as the advisory makes clear, transition services and a student’s other special education and related services are to be planned and implemented as a cohesive, seamless, goal-oriented education program. (See advisory, pages 1, 3.)
B. Essential Purpose of Transition Services
Preparing students for life after high school is the essential (and sole) purpose of transition services. This is accomplished, the advisory explains, by helping students “build the skills they will need to live successful lives as adult learners, workers, and community members.” (See advisory, page 1.)
A number of federal courts have noted that, as compared to other special education services that may focus generally on a student’s academic and functional development, transition services are to be developed for the specific purpose of facilitating a student’s successful transition to post-high school education, employment, and independent community living.
Keeping in mind the essential purpose of transition services is important. No matter how effective transition services might be in allowing a student to succeed within the structured and protected setting of a high school, transition services can never be considered appropriate unless they are designed to further the purpose of transition services — that is, to help the student be successful after high school ends.
II. PRINCIPLES FOUND WITHIN THE ADVISORY
A. School Districts Must Meet the “Full Range” of Students’ Transition Needs
- A sufficient range and continuum of transition services must be provided.
- Partnerships with organizations in the community are necessary for this to occur.
The advisory makes explicit that each school district has a responsibility to “provide a sufficient range and continuum of coordinated transition services to meet the full range of students’ needs across the age span of 14 to 22 years.” (See advisory, page 2.)
Relying on DESE regulations for older students (18 to 22 years), the advisory further explains that each school district has a responsibility to have a sufficient breadth of transition services to teach the following transition skills to all older students who need them:
- skills necessary for postsecondary education and/or training,
- skills needed to seek, obtain and maintain employment,
- skills necessary for independent living,
- skills needed to access community services, and
- skills used to self-manage medical and other personal needs.
(See advisory, page 2.)
As the advisory explains in greater detail, partnerships and collaboration will likely be essential to providing a sufficient range and continuum of transition services. Experience has demonstrated that school districts can effectively implement appropriate transition services only by developing partnerships with entities in the community (such as institutions of higher education, employers, workforce investment boards, YMCAs, adult education programs and a wide range of other community organizations) and by collaborating with adult human services agencies (such as Mass. Rehabilitation Commission). (See advisory, pages 2, 3.)
Partnerships and collaboration are not intended to turn over responsibility for transition services to another entity but rather for the school district to work with other entities to expand its services beyond what it can offer within the high school setting. Regardless of what assistance is provided by other organizations, school districts remain responsible for students receiving the transition services to which they are legally entitled under the IDEA and state special education law.
B. Transition Services Must Be Individualized
- Transition services must be tailored to each student’s unique needs, strengths, preferences and interests.
- Learning opportunities often must be provided in the community in order to be sufficiently individualized.
The advisory emphasizes that “[l]ike all other special education services, transition services must be individually tailored to address each student’s unique needs.” (See advisory, page 4.) Similarly, the IDEA states that transition services must be “based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests.”
The advisory explains why individualization is necessary. Students with similar education profiles may require very different transition services “because individual students may have different needs, strengths, preferences, interests, and postsecondary goals.” In order to meet each student’s unique, individual transition needs, the advisory states that the “IEP team should consider a full range of possible services, not limited by existing programming or disability type.” (See advisory, page 4.) In other words, a school district may need to create new opportunities to meet a student’s individual transition needs, rather than, for example, placing the student in a recycling center or on a culinary track because those programs/partnerships are already available through the school district.
The advisory concludes in this section that for a school district to provide transition services that satisfy the IDEA’s standard of being individualized, it will often not be sufficient for students to learn exclusively within the school setting. “Addressing each student’s individual needs often requires creating and supporting individualized learning opportunities in the community – for example, by assisting individual students to access higher education courses, customizing authentic paid employment opportunities, or facilitating/preparing for meaningful participation in leisure and recreational activities.” (See advisory, page 4.)
C. Transition Services Must Be Result-Oriented
- Transition services must result in meaningful and effective progress.
- This requires generalizing skills to community environments.
The advisory makes clear that “[t]ransition services must be results oriented.” This means that transition services “must develop students’ functional and academic skills needed to make meaningful and effective progress towards achieving their postsecondary goals in the domains of postsecondary education/training, competitive employment, independent living, and community participation as appropriate to each student.” (See advisory, page 4.)
The advisory explains that transition services for each individual student with an IEP are to “be provided in a well-thought-out, stepwise, developmental progression so that each year students build new skills that move them closer toward achieving their postsecondary goals.” Results-oriented transition services also “encourage students to function as independently as possible.” (See advisory, pages 3, 4-5.)
As discussed earlier in this posting, the essential purpose of transition services is to help students succeed after high school. This purpose can only be achieved to the extent that a student learns to generalize the transition skills being learned. The advisory explains: “Results oriented transition services … support students to generalize and transfer skills throughout all the community environments where they will be living, working, or going to school as adults.” (See advisory, page 5.)
The advisory further explains that in order for transition skills to be appropriately taught so that they can be generalized, the transition skills may need to be taught within the community — that is where the skills will actually be utilized after high school. This point is illustrated through the following example of learning pragmatic language skills:
In order for pragmatic language skills to be learned so they will generalize across multiple adult settings, it is often necessary for students to receive instruction in the environments in which they will live, work, and learn when they are adults. A speech-language pathologist or other social skills expert may need to provide instruction and coaching to a student at a community based job or recreation site. [See advisory, page 5.]
D. Transition Services Must Comply With LRE Principles
- LRE requires that students with disabilities learn transition skills with peers who do not have a disability.
- For older students, this typically requires that transition skills be taught in the community with nondisabled peers.
The advisory notes that the least restrictive environment (or LRE) principle is “foundational to the IDEA and is supported by research on student outcomes.” “Therefore, to the maximum extent appropriate, students with disabilities must have the opportunity to learn academic and functional skills with age-appropriate people who do not have disabilities, both in school and in the community.” In order for students with disabilities to have this learning opportunity, “[s]upplementary aids and services (for example, a job or education coach, or assistive technology) must be provided, as necessary, to support students’ successful placement in the LRE.” (See advisory, page 5.)
As the advisory further recognizes, the location of transition services becomes particularly important as students with disabilities grow older since “an increasing amount of their transition services should be provided in community settings.” The advisory makes clear the central importance of this point for older students who have completed four years of high school and remain eligible for special education services in the following statement:
Since [these older students] no longer have age-appropriate, nondisabled peers at the high school, the least restrictive environment for these older students – indeed, the ‘general curriculum’ for these students – is most often the community, the colleges and training programs, and jobs where their former classmates are now engaged. [See advisory, page 5.]
It is also noteworthy that the advisory explains how LRE requires more than simply locating the transition services in the community. “Full inclusion for these students means interacting most of the day with adults who do not have disabilities, and having experiences and learning skills in environments where most other people do not have disabilities.” (See advisory, page 5.)
School districts (such as Worcester Public Schools) which have implemented individualized, community-based transition services for older students, are demonstrating the feasibility and effectiveness of this model.
E. Transition Services Often Must Be Provided In the Community
- A community setting, where a student can learn with nondisabled peers, may be the only effective way to learn transition services.
- Research demonstrates why employment skills should be learned within authentic worksites in the community.
As discussed above in this posting, throughout the advisory DESE explains that it may be necessary for students with disabilities to learn transition skills within community settings with nondisabled peers in order for the transition services to be effective and allow for meaningful progress to be made toward meeting post-secondary goals. The advisory emphasizes this point further in this section with the following general statement: “Research demonstrates that many transition skills are effectively acquired only in the community with nondisabled peers.” (See advisory, page 6.)
The advisory then points out an important example of this principle — that is, the development of employment skills. Employment skills have long been considered a “critical focus of effective transition services.” The advisory notes that work experience opportunities to learn job skills within the public schools may be a useful “first step”. But these experiences, by themselves, are not likely to be sufficient, as the advisory explains in the following:
Research demonstrates that adult employment outcomes for all students – including students with disabilities – are significantly improved when students have the opportunity to learn work skills through multiple and diverse employment opportunities that are paid and that take place in authentic community worksites (as compared to employment specially created for persons with disabilities). [See advisory, page 6.]
Another important example of community-based learning is institutions of higher education. As referenced in the advisory (pages 2 and 4) and as will be discussed further in the second part of this posting, the vast majority of older students with disabilities who remain eligible for special education services (even those with significant disabilities such as intellectual disabilities and autism spectrum disorders) may greatly benefit from postsecondary education, including college. The effectiveness of providing transition services through school district partnerships with institutions of higher education has been clearly demonstrated. (See October posting entitled “Transition Services — Part II”.)
These two examples (employment and post-secondary education) illustrate how partnerships and collaboration between the school district and employers, institutions of higher education, and many other kinds of organizations in the community are essential to a school district’s ability to provide a full range of transition services, including appropriate transition services that are community-based.
F. Learning Transportation Skills May Be Essential
- Transition services may be unsuccessful and inappropriate if students do not learn transportation (i.e., travel) skills.
- These skills include using public and paratransit transportation independently.
The IDEA defines travel training to mean instruction that enables students with disabilities to do the following:
- develop an awareness of the environment in which they live; and
- learn the skills necessary to move effectively and safely from place to place within that environment (e.g., at college, in the home, at work, and in the community).
In other words, travel training may include instruction in the independent use of public or paratransit transportation and learning how to access one’s environment and community. The IDEA also makes clear that travel training must be provided to all students with disabilities (including students with significant cognitive disabilities) who require this instruction.
The advisory emphasizes the importance of learning these skills as follows: “All adults need to be able to successfully travel from home to work to recreation, and back again” and students with disabilities “must be able to travel as independently as possible.” (See advisory, page 6.)
As the advisory makes clear, “[D]ESE has placed the highest importance on preparing students to succeed as adults.” (See advisory, page 6.) The advisory reflects this high priority by providing detailed, substantive guidance to school districts (as well as to parents, students and their advocates) to assist them to improve outcomes for students with disabilities and comply with state and federal laws mandating transition services.
 Bill Crane is of counsel at MAC where he works on systemic issues and provides consultation to attorneys representing low-income families in special education disputes. Bill was a hearing officer at the Bureau of Special Education Appeals from 1999 to 2014.
 The DESE advisory, which is entitled “Technical Assistance Advisory SPED 2017-1: Characteristics of High Quality Secondary Transition Services”, can be found at http://www.doe.mass.edu/sped/advisories/2017-1ta.pdf
 The other DESE transition advisories, as well as DESE’s self-determination advisory, may be found on DESE’s Transition Services website at http://www.doe.mass.edu/sped/secondary-transition/default.html
 See MGL c. 71B, s.2 (“Beginning age 14 or sooner if determined appropriate by an individualized education program team, school age children with disabilities shall be entitled to transition services”); Technical Assistance Advisory SPED 2009-1: Transition Planning to Begin at Age 14.
 As stated in the IDEA, transition services include 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. See 20 U.S.C. § 1401(34)(C).
 See 34 CFR §300.43(b) (transition services may be special education if provided as specially designed instruction, or a related service if required to assist a student with a disability to benefit from special education). See also 34 CFR 300.39 (special education is defined to include vocational education that prepares students for paid or unpaid employment and travel training that teaches the skills to move safely and effectively from place to place).
 See “Teaching Transition Skills in Inclusive Schools” by Teresa Grossi and Cassandra Cole (Paul H. Brookes Publishing Co. 2013) (explaining the importance of integrating transition services with a student’s other special education and related services).
 The U.S. Dept. of Education has similarly defined the purpose of transition services: “The purpose of [the transition services requirement] is to focus 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.” 64 Fed. Reg. 12474-12475 (March 12, 1999), quoting H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997).
 See, e.g., Yankton School Dist. v. Schramm, 93 F.3d 1369, n.6 (8th Cir. 1996) (“A very bright, disciplined, and determined student, Tracy appears to be headed for college. Preparing disabled students for postsecondary education is one of the reasons for transition services under the IDEA. Under the statute, her success in high school, due in part to the special education she receives, should not prevent her from receiving whatever transition services she may need to be equally successful in college.”); Elizabeth M. v. William S. Hart Union High School Dist., 2003 WL 25514791, *4 (C.D. Cal. 2003 (“adequate high school education is inextricably linked to a successful transition to post-secondary education”); Kevin T. v. Elmhurst Community School Dist. No. 205, 2002 WL 433061, *12 (N.D.Ill. 2002) (transition services are “[t]o ensure that disabled students can adequately function in society after graduation”); J.B. v. Killingly Board of Education, 990 F.Supp. 57 (D.CT 1997) (student “could receive instruction in community living and social skills, including daily living skills, appropriate behavior, socialization, and working skills, as part of his transition services”); Yankton School District v. Schramm, 900 F.Supp. 1182 (D.S.D. 1995) (“Transition services are ‘aimed at preparing students (soon to leave school) for employment, postsecondary education, vocational training, continuing and adult education, adult services, independent living, or community participation.’”) (emphasis in original), aff’d 93 F.3d 1369 (8th Cir. 1996).
 This is illustrated by the Dracut case. Dracut witnesses testified persuasively that their transition services were allowing the student to succeed at high school, but the Bureau of Special Education Appeals (BSEA) and the federal District Court found the transition services insufficient because they did not include services (such as pragmatic language instruction and community-based learning opportunities) that were essential to helping student succeed after high school. See Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ., 737 F.Supp.2d 35 (D.Mass. 2010). Disclosure: I was the BSEA Hearing Officer in this dispute.
 The advisory cites to and quotes IDEA regulations (34 CFR 300.115) that require each school district to have a continuum of alternative placements available to meet the needs of students with disabilities for special education and related service. The advisory also cites to and quotes the U.S. Dept. of Education’s position that “the LEA has an obligation to make available a full continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with nondisabled peers to the extent appropriate.” 71 Fed. Reg. at 46588.
 20 U.S.C. § 1401(34)(B).
 34 CFR 300.39(b)(4). (The advisory relies on this federal definition. See, page 6, footnote 31 of the advisory.)