Bill’s Blog: Transition Services – Part II
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.
This is the second of two postings on transition services. The first posting (September 2016) introduced the definition and purpose of transition services and then explored many of the substantive principles found within the DESE advisory. The first posting may be found at http://massadvocates.org/bills-blog-transition-services-part-i-2/ We have also written a one-page summary of the DESE advisory, suitable for lay readers, which is posted on the transition services section of the MAC website at http://massadvocates.org/wp-content/uploads/Summary-of-DESE-advisory-on-Transition-Services-9-27-16-Final.pdf
This posting first explains why transition services are an essential part of a student’s right to a free appropriate public education (or FAPE) and discusses the central importance of transition services. This posting then explores 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. Finally, this posting includes an appendix with the federal special education laws relevant to transition planning and services, including a brief analysis.
I. INTRODUCTORY PRINCIPLES
A. Transition Services as an Essential Part of FAPE
- The purpose of transition services is found within the purposes of the IDEA
- Transition services are not separate from a school district’s responsibility to provide FAPE
The IDEA states that its principal purpose is “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 … prepare them for further education, employment, and independent living.” Thus, the essential purpose of transition services is found within the purposes of the IDEA.
The First Circuit Court of Appeals has explained that transition services are part of, and not separate from, a school district’s responsibility to provide FAPE under the IDEA. Whether a student’s transition planning and services are appropriate must therefore be considered within the context of FAPE and court decisions interpreting FAPE.
In other words, transition services are an essential part of a student’s right to FAPE under the IDEA.
B. Importance of Transition Services
- DESE has consistently emphasized the fundamental importance of transition services
- Congress has emphasized that years of special education services may be wasted if a student has not learned how to succeed in adult life
In a previous advisory, DESE stated that its “overarching goal” is to “prepare all students to succeed in the world that awaits them after high school,” with the result that “the ultimate goal of all professional endeavors in special education is to prepare students with disabilities for adult life.” Similarly, the current advisory cites to DESE’s website which states: “The Department of Elementary and Secondary Education (ESE) is committed to preparing all students for success in the world that awaits them after high school.” And the conclusion of the current advisory explains: “ESE has placed the highest importance on preparing students to succeed as adults.” (See advisory, page 6.)
Congress has pointed out that the importance of transition services is perhaps self-evident when one considers that the vast amounts of resources used to educate students under the IDEA may have only limited usefulness if students are not prepared to move successfully into post-high school education, employment and independent community living. Congress emphasized this point in 1990 when considering whether to add to the IDEA a specific mandate regarding transition planning and services. In House Report 101–544, Congress observed that
individuals will move from school into adult life with varying degrees of success. Some will go to college, some will enter vocational training programs, while others will enter the workforce and some will qualify for vocational rehabilitation services. Unfortunately, others will exit our nation’s schools into nothing. Years of special education will be wasted while these individuals languish at home, their ability to become independent and self-sufficient (therefore making a positive contribution to society) placed at significant risk. The Committee sees such an outcome as highly undesirable. Although not fully responsible for ensuring an appropriate entrance into the adult world, school systems must do more to address the transition of special education students into adulthood.
Similarly, in Rowley, the Supreme Court noted that through the IDEA, Congress has sought to enable students with disabilities to become successful after high school. In the words of the Court, in enacting the IDEA, Congress intended that “handicapped children be enabled to achieve a reasonable degree of self-sufficiency” and “become productive citizens, contributing to society instead of being forced to remain burdens.” The Sixth Circuit Court of Appeals has stated: “At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.”
II. TRANSITION SERVICES BRIEFLY REFERENCED IN DESE ADVISORY
A. Accessing Higher Education
In two places (pages 2 and 4), the DESE advisory explains, by way of example, the importance of accessing institutions of higher education to provide required transition services which support important community learning opportunities. Because of the importance of this point, the topic is addressed here in greater depth.
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 carefully considered and clearly demonstrated in the following ways.
The Task Force on Higher Education for Students with Intellectual Disability and Autism Spectrum Disorder: A Report to the Massachusetts Legislature (April 2014) found that older students with severe disabilities who remain eligible for special education services can successfully complete inclusive credit and noncredit college courses often related to their career goals, participate meaningfully in the life of the campus, and make progress towards their individual education and career goals while attending an institution of higher education. The Report noted that for these students, higher education is an important pathway to integrated competitive employment and independent living. Forty percent of students with intellectual disabilities provided with higher education opportunities worked in a paid job, an employment rate more than twice as high as the rate for students who do not attend college. In addition, there was a twenty-seven percent reduction in the number of individuals with intellectual disabilities receiving SSI benefits upon exiting college.
A discretionary grant program in Massachusetts (referred to as the Inclusive Concurrent Enrollment Initiative or ICEI) has demonstrated the effectiveness of this model. Initial data reported by DESE highlight important student outcomes including self-determination skills, participation in career planning, vocational skill-building activities and improvement of academic, social, and other transition-related skills.
Similarly, the United States Department of Education’s Office of Special Education Programs has found that providing a high school student with a disability the opportunity to take one or more courses at a postsecondary educational institution prior to exiting special education can be critical in facilitating the student’s transition from secondary school to college or the workforce.
These experiences and findings demonstrate the unique learning opportunities that institutions of higher education can provide for teaching transition skills to older students with a very wide range of disabilities. However, in order to provide this transition services option, school districts must develop partnerships with institutions of higher education. School districts may also need to provide students with aids and services, as required by the IDEA, so that students can access and participate in higher education.
B. Self-determination Skills
DESE has a separate advisory addressing self-determination, and therefore this topic is not addressed in the July 14th transition services advisory. However, because of the importance of providing transition services to support self-determination skills, a brief discussion is provided here.
Whether on a job site or college campus, individuals with disabilities must know how to self-advocate for needed services, supports and accommodations; and to set personal, career and academic goals. These and other kinds of self-determination skills allow students to adjust their behaviors appropriately, learn strategies necessary to be successful, and obtain the supports needed to achieve their goals.
For students with disabilities who have deficits in these areas, transition services to develop self-determination skills may be essential, as DESE has explained in its separate advisory.
C. Communication and Social Skills
The advisory states why pragmatic language skills are necessary: ”For many students with disabilities, the development of pragmatic communication and social skills is critical to lifelong success.” (See advisory, page 5.) Because of the importance not only of pragmatic language skills but also of communication and social skills in general, a fuller discussion is provided here.
For many students with disabilities, the development of communication (both oral and through assistive technology) and social skills is critical to lifelong success. For example, in order to be successful after high school, all students with disabilities will have to understand general expectations, including any written or unwritten rules of behavior. Additionally, they will have to be able to receive information from others (i.e. employers, co-workers, professors) through verbal and nonverbal communications. And they will often need to collaborate effectively with others.
Many students with disabilities (for example, students on the autism spectrum) may have deficits in these areas. Communication deficits may impair a student’s ability to share social information, to change communication to match the context, to understand rules of conversation (such as taking turns), to understand what is not explicitly stated (e.g., making inferences) and to understand nonliteral language (e.g., humor). Social skills deficits may limit the ability to work collaboratively, make friends, or become integrated into the worksite or other community settings. Social skills deficits may also include anger management issues or negative attitudes that interfere with communication, collaboration and social relationships.
These deficits have substantial, long-term consequences for successful transition to adult life. For example, students may have the skills and knowledge to obtain employment because they are able to do the specific work tasks of the job. But without adequate communication and social skills, students likely will eventually fail at work and be unable to hold the job for any significant length of time. Similarly, if students do not develop appropriate communication and social skills, they will not likely be successful in higher education. Students with significant communication and social skills deficits are at risk of becoming discouraged, staying at home, and failing to realize their potential to live independently.
For these reasons, communication and social skills instruction may be an essential transition service for many students with disabilities and should be addressed as early as possible in a student’s education. DESE has social and emotional learning guidelines to assist school districts with social skills training.
IDEA Statutory and Regulatory Language Relevant to Transition Planning and Services
The federal statutory and regulatory language regarding transition planning and services is found in two parts. First is the language defining the term “transition services” and second is the language that mandates transition planning as part of the process for development of an IEP.
First, transition services are defined by the IDEA as follows:
The term “transition services” means a coordinated set of activities for a child with a disability that—
(A) is designed to 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, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and
(C) 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.
20 U.S.C. § 1401(34). See also 24 C.F.R. § 300.43 (providing a similar definition of transition services).
From this definitional language, it seems clear that the overarching purpose of transition services is to “improve[e] the academic and functional achievement of the [student] to facilitate [his or her] movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.” See quoted subparagraph (A), above.
In the above-quoted statutory definition, it is stated that transition services include “instruction”, which the federal regulations clarify to mean “specially designed instruction” for special education students. 34 CFR §300.43(b) (“Transition services for children with disabilities may be special education, if provided as specially designed instruction, or a related service, if required to assist a child with a disability to benefit from special education.”). In addition, the statutory definition provides that transition services include “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 quoted subparagraph (C), above.
It is therefore apparent that, similar to other IEP services, transition services may include the full range of special education and related services. Additional services (for example, community-based services) specifically focused on facilitating a student’s transition may also be required.
The above definition states that transition services, similar to other parts of an IEP, focus on a student’s individual “needs”. However, transition services must also “tak[e] into account the child’s strengths, preferences, and interests”. See quoted subparagraph (B), above. This requires a school district to determine and then consider the student’s actual vision for post-high school. For this purpose, the federal regulations require the student to be invited to any Team meeting whose purpose is to consider postsecondary goals and the transition services needed to reach those goals. 34 CFR §300.321(b)(1).
And, if the student does not attend the IEP Team meeting, the school district “must take other steps to ensure that the child’s preferences and interests are considered.” 34 CFR §300.321(b)(2).
Second, the IDEA mandates transition planning as part of the IEP process through the following statutory language:
The term “individualized education program” or “IEP” means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes …
(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter–
(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills;
(bb) the transition services (including courses of study) needed to assist the child in reaching those goals ….
20 USC § 1414 (d)(1)(A)(i). See also 34 CFR §300.320(b) (providing similar requirements).
From this language, it is clear that essential to the development of appropriate transition planning and services is a school district’s “age appropriate transitional assessments related to training, education, employment, and, where appropriate, independent living skills.” See quoted subparagraph (aa), above. The assessments are necessary to ensure appropriate transition planning because the school district must develop “appropriate measurable postsecondary goals based upon age appropriate transition assessments.” See quoted subparagraph (aa), above. Once the appropriate goals are identified, the school district must then provide “transition services (including courses of study) needed to assist the child in reaching those goals.” See quoted subparagraph (bb), above.
Congress has also specifically noted that “providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities”. 20 USC § 1400(c)(14) (emphasis supplied).
 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”, may be found at http://www.doe.mass.edu/sped/advisories/2017-1ta.pdf
 20 U.S.C. § 1400(d)(1)(A) (the 2004 amendments to the IDEA added the phrase “further education”). See also 20 USC 1412(a)(1)(A).
 See Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F.3d 18, 28-30 (1st Cir. 2008) (applying FAPE standards to determine whether transition services were appropriate).
 “Technical Assistance Advisory SPED 2013-1: Postsecondary Goals and Annual IEP Goals in the Transition Planning Process” found at: http://www.doe.mass.edu/sped/advisories/13_1ta.html
 H.R.Rep. No. 101-544, 101st Cong., 2d Sess. 9, reprinted in 1990 U.S.Code Cong. & Admin. News 1723, 1731-33 (emphasis supplied), quoted in part in Todd D. by Robert D. v. Andrews, 933 F.2d 1576, n.2 (11th Cir. 1991).
 Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 201, n.23 (1982).
 Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 864 (6th Cir. 2004).
 The Task Force report may be found online at: http://massadvocates.org/wp-content/uploads/Higher-Ed-Final-task-force-report-4-14-2.pdf
 This initiative is discussed on the Massachusetts Executive Office of Education’s website at http://www.mass.gov/edu/birth-grade-12/higher-education/initiatives-and-special-programs/inclusive-concurrent-enrollment/
 Information regarding the Inclusive Concurrent Enrollment Initiative may be found online at: http://www.mass.gov/edu/birth-grade-12/higher-education/initiatives-and-special-programs/inclusive-concurrent-enrollment/
 See Letter to Dude, Office of Special Education Programs, 62 IDELR 91, 113 LRP 37277 (September 3, 2013).
 IDEA regulations (34 CFR 300.107) require school districts to provide supplementary aids and services as needed for students with disabilities to participate in nonacademic and extracurricular services.
 See Technical Assistance Advisory SPED 2016-2: Promoting Student Self-Determination to Improve Student Outcomes which may be found online at: http://www.doe.mass.edu/sped/advisories/2016-2ta.pdf
 See, e.g., Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ., 737 F.Supp.2d 35, 52-53, 55-56 (D.Mass. 2010) (Court noted overwhelming evidence that the student’s pragmatic language deficits affected his ability to transition from high school to other settings in a critical way, and then required the school district to address these deficits through systematic, step-by-step pragmatic language instruction taught with consistency over a period of time, with the addition of a significant amount of practice with a language pragmatics teacher within a variety of community contexts, including higher education and employment).
 School districts may utilize DESE’s Guidelines on Implementing Social-Emotional Learning (SEL) Curricula when teaching social skills. The guidelines explain how to effectively implement social and emotional learning curricula for students in grades K-12 for purposes of teaching self-awareness, self-management, social awareness, relationship skills, and responsible decision-making. The guidelines can be found online at: http://www.doe.mass.edu/bullying/SELguide.pdf#search=%22guidelines%22