TRANSITION TO ADULTHOOD – PRACTICAL AND LEGAL STRATEGIES TO SUPPORT THE PLANNING PROCESSKatie Hornberger

Attorney

Supervising Clients’ Rights Advocate

OCRA

Disability Rights California

April 21, 2012

TRAINING GOALS

Know what transition services are. Understand the obligations of the local

school district. Understand the obligations of the regional

center. Know the different appeal processes.

AGENCIES INVOLVED IN TRANSITION

School Regional Center Department of Rehabilitation Mental Health Post-Secondary Schools Health Care Providers

SPECIAL EDUCATION

SPECIAL EDUCATION All students are entitled to a Free Appropriate

Public Education (FAPE) in the Least Restrictive Environment (LRE).

Free – no cost to the parents Appropriate – an education reasonably

calculated to give the student educational benefit, ie making progress toward goals and objectives on the IEP.

Public – Publicly paid for. Education – specialized instruction and

transition services. This includes ESY, AT, and Transition.

TRANSITION ACTIVITIES UNDER IDEA

Instruction. Community experiences. Development of employment and other post-

school adult living objectives. If appropriate, acquisition of daily living skills

and functional vocational evaluation.

TRANSITION SERVICES

Transition Planning Employment Preparation Specialized Job Development Job Coaching Case Management Travel Training Benefits Planning & Management Self-Advocacy Skills training Preparing for Post-Secondary Education

Participation Skill development to support adult self-

sufficiency

THREE MAIN COMPONENTS:

Transitioning from school to post-secondary activities,

Planning based upon student’s needs and preferences, and

Identifying post-secondary educational, community, employment, and independent living objectives.

MEMBERS OF A TRANSITION TEAM

Peers Advocates Parents Teacher Counselors Independent Living Center Disabled Students Programs Employer Other resources

THE INDIVIDUALIZED TRANSITION PLAN (ITP) Purpose – to help transition into adulthood Student’s preference and needs taken into

consideration Student included as a member of the IEP

Vocational and daily living skills assessments

Include representatives from local agencies who are responsible for providing and/or paying for services.

No later than age 16

THE ITP MUST INCLUDE:

Shall identify which agencies will be responsible for transition services

Document that other agencies have accepted the student for post-secondary school services

Document the participation of other agencies in planning and service delivery.

OPTIONS CAN INCLUDE:

Community experiences Development of employment and other

post-school adult living objectives If appropriate, acquisition of daily living

skills and functional vocational evaluation. Project Workability Programs see

http://www.cde.ca.gov/sp/se/sr/wrkabltyI.asp, Mobility Training, Job Coach, Classes at a Community College, and Involvement with DOR.

WORKABILITY

The WorkAbility I program is funded and administered by the California Department of Education

The WorkAbility I project was initiated in November 1981 as a pilot project to test the concept of work experience for youth with disabilities. WorkAbility I continues today to successfully conduct interagency coordination of services.

The WorkAbility I program provides comprehensive pre-employment training, employment placement and follow up for junior high and high school students and adults with disabilities.

MISSION OF WORKABILITY I

The Mission of WorkAbility 1 is to promote the involvement of key stakeholders including students, families, educators, employers and other agencies in planning and implementing an array of services that will culminate in successful student transition to employment, lifelong learning and quality of life.

ASSESSMENT OF INTERESTS

› Social Do you like to work with people to inform, help, train, enlighten,

develop or cure or are you skilled with words?› Investigative

Are you interested in jobs with people who like to observe, learn investigate, analyze, evaluate, or solve problems?

› Realistic Are you interested in jobs that require athletic or mechanical ability,

working with objects, machines, tools, plants, or animals, or being outdoors?

› Artistic Are you interested in jobs involving artistic, innovating, or institutional

abilities, and like to work in unstructured creative situations?› Conventional

Are you interested in jobs that involve working with data, clerical tasks, or creative ability, carrying out things in detail, or following instructions?

› Enterprising Are you interested in jobs where you work with people to influence,

perform, persuade, or lead for organizational goals or economic gain?

TRANSITION RESOURCES Transition planning CDE Book “Transition to Adulthood: A Guide for Secondary Education” (2003)

available at 916-323-0832 http://www.wrightslaw.com/info/trans.faqs.htm http://www.wrightslaw.com/info/trans.legal.bateman.htm http://ncset.org/publications/viewdesc.asp?id=423 http://www.nichcy.org/pubs/transum/ts10txt.htm http://www.nichcy.org/outprint.asp#ts8 http://www.nichcy.org/transitn.asp#ts10 http://www.nichcy.org/stuguid.asp#st2

Jobs http://www.nichcy.org/stuguid.asp#ta3 http://www.nichcy.org/outprint.asp#ts7 http://www.nichcy.org/stuguid.asp#st2

Vocational Assessment http://www.nichcy.org/stuguid.asp#ta3

EXITING SPECIAL EDUCATION In CA, special education continues without qualifications

through a student’s 18th year if they have not received a diploma. Individuals who are 19, 20, or 21, who were enrolled in or were eligible for special education prior to their 19th birthday, continue to be eligible during those years if they have not completed their prescribed course of study, or if they have not met proficiency standards, or if they have not graduated with a regular diploma.

Compensatory education is different, ie failure to do appropriate transition planning results in compensatory services which will extend eligibility past the age or study criteria.

STANDARDIZED TESTING IN SPECIAL EDUCATION

CA High School Exit Exam (CAHSEE) Requirement for a Diploma

has been postponed.

STAR Testing – In CA, Stanford Achievement Test 9th Edition or

SAT-9 is used by educators to determine a retention policy for

students. Special education students utilize the IEP process to

determine retention/promotion. Students can also be exempted out

of the testing.

California Alternate Performance Assessment (CAPA)

http://www.cde.ca.gov/sp/se/sr/capa.asp

Modifications of tests are also available see

http://www.cde.ca.gov/ta/tg/sa/documents/matrix5.pdf

For more information on testing see

http://www.cde.ca.gov/ta/tg/sr/index.asp

http://www.wrightslaw.com/law/osep/faqs.idea.assessment.htm

DUE PROCESS WITH THE SCHOOL DISTRICT

DISAGREEING WITH THE IEP

Goals Placement Services Supports

SIGNING IN DISAGREEMENT

You must give permission for those services/supports/placement that you wish to be implemented. An unsigned IEP cannot be implemented.

You can agree with parts and disagree with parts.

You can ask that a service be implemented while still disagreeing with it.

STAY PUT

Except in limited circumstances, your child must remain in her then current educational placement and have her current IEP fully implemented from the time you request a hearing until the due process proceedings are completed.

ALTERNATE DUE PROCESS PROCEEDINGS

“Pre-Due Process” Mediation – is conducted like a due process mediation but parents cannot have an attorney participate. There is also concern about whether “stay-put” applies during this time period.

“Informal” Meeting – many school districts offer a meeting with a representative to attempt to resolve the problem before due process is filed.

REQUEST FOR DUE PROCESS Generally, you have 2 years to file. Requests for Due Process must include the following

information: Name of the child, Residential address of the child – or contact information for a

homeless child, A description of the problem or problems the child has as they relate

to something the school has done or has not done. The description must give enough facts to clearly describe the problem, and

A description of the proposed resolution to the problem to the extent the parent knows what would resolve the problem when s/he asks for a due process hearing.

Requests for Due Process should be sent to: Office of Administrative Hearings Special Education Unit 1102 Q Street, 4th Floor Sacramento, CA 95814 Phone (916) 323-6876 // Fax (916) 322-8014

PRIOR WRITTEN NOTICE BY THE SCHOOL DISTRICT The school must give the parents prior written notice of

the reasons why the school has decided to do or not do whatever it is that is causing the problem.

Prior written notice must include: A description of the action proposed or refused by the

school; An explanation of why the school proposes or refuses to take

that action and of each evaluation, procedure, test report, etc. the school used as a basis for the action or inaction;

A copy of the parent’s rights to challenge the action or inaction;

Sources of advocacy assistance for parents; Other options to the action or inaction which the school

considered and why those other options were rejected; and Other reasons for the school’s action or inaction.

DISTRICT MUST PROVIDE WRITTEN NOTICE Once a parent requests a fair hearing, if the school

never sent the prior written notice described in (b) above, it must, within 10 days of getting a copy of the parent’s fair hearing request, send the parent a response which includes all of the following information: An explanation of why the school proposes or refuses

to take that action and of each evaluation, procedure, test report, etc. the school used as a basis for the action or inaction;

Other options to the action or inaction which the school considered and why those other options were rejected; and

Other reasons for the school’s action or inaction.

DISTRICT RESPONSE TO DUE PROCESS REQUEST

Even if the school has to send the parent a response, because it never sent

the parent a prior written notice, the school can still claim that the parent’s

request for hearing is not clear enough. The school must make this claim

within 15 days of receiving the parent’s request for due process. A hearing

officer also receives a copy of the school’s objection to the parent’s due

process request and must rule on it within 5 days.

If the hearing officer agrees with the school, the parent can change and

clarify the due process hearing request, but only if the school agrees to let

the parent do so and is also given a chance to resolve the more clearly

stated request, or if the hearing officer grants the parent permission to file a

new request. A hearing officer must grants this permission at least 5 days

before the scheduled hearing. If the time that has gone by while the school

was objecting to the parent’s first request for a hearing and while the parent

was filing a more complete due process request does not count toward the

total number of days that the state has to complete the hearing and write a

final decision. That time limit is currently 45 days.

PRE-HEARING DISPUTE RESOLUTION SESSION

The resolution session must occur within 15 days of the school getting the parent’s

request for due process and it must be finished within 30 days.

The new resolution session involves the parents and a representative of the school district

who has the authority to commit the school district to a resolution. The session may not

involve attorneys for the school district unless the parent is represented by an attorney. At

the resolution session, the parents must be able to discuss the basis for their complaint

and the school is given an opportunity to resolve it. If the resolution session does lead to

a solution, the solution must be put into writing and must be signed by both sides, The

agreement is legally binding on the parties and can be enforced in both federal and state

court. The parties have 3 days after signing the agreement to back out of it.

A party cannot have a hearing without going through this resolution session unless both

sides waive the resolution session in writing or both agree to use mediation instead.

MEDIATION

An ALJ trained in mediation informally meets with you and a

school district representative.

All discussions which took place in reaching an agreement stay

confidential and cannot be disclosed in a subsequent hearing

or court case,

The mediator tries to find common ground and new solutions.

The mediator has no power to force an agreement.

If you reach agreement, you sign a private agreement and the

appeal process stops.

Attorneys fees may be recovered from the district by the

attorney for the parent.

If you do not reach agreement you proceed to due process with

a different ALJ.

PREPARING FOR DUE PROCESS

Hearing is held before an Administrative Law Judge.

10 days before the hearing you and the school district must submit an issue statement and proposed resolution to the hearing office.

5 business days before the hearing you and the school district send each other your exhibits and a list of witnesses.

IN DUE PROCESS

Each side will present their evidence and witnesses.

The proceedings are tape recorded. Hearing officers can be involved in the

proceedings – not just listening. The hearing officer will issue a written

decision. Attorneys fees can be awarded to the

parents attorneys if they are the prevailing party.

AFTER DUE PROCESS

Hearing decisions can be appealed to superior court within 90 days of the decision.

SPECIAL EDUCATION AND REGIONAL CENTER

IDEA AND LANTERMAN SERVICES

Community experiences

Development of employment and other post-school adult living objectives

If appropriate, acquisition of daily living skills and functional vocational evaluation.

Community integration services

Sheltered employment

Travel training Special living

arrangements Daily living skills Recreation Follow along services Adaptive equipment

and supplies

IDEA AND LANTERMAN ACT RESPONSIBILITIES

If another agency is responsible for providing a related service, the IEP should indicate that it is being provided by another agency.

Service coordination shall include those activities necessary to implement an IPP, including obtaining from generic agencies or other resources, services and supports specified.

INVOLVEMENT OF RC During the exit years (18-22)

Assist in encouraging other agencies to attend the IEP/ITP meetings.

Assist families to explore adult agencies, tour them, so families and students can make informed decisions.

Service coordinators attending IEPs for transition and assisting with the smooth transition to the adult service system.

REGIONAL CENTER

ROLE OF THE REGIONAL CENTER

Securing services and supports which maximize opportunities and choices for living, working, learning and recreating in the community.

Provide specialized services and supports or adapt generic services and supports.

The determination of which services and supports are necessary for each consumer shall be made on the basis of the needs and preferences of the consumer.

REGIONAL CENTER SERVICES

Relationship Services Emergency and Crisis

Intervention Specialized

Equipment Transportation

Services Facilitation Services Self-Advocacy Advocacy Family Support

Services

Assessment Services Habilitation and

Training Treatment and

Therapy Preventive Services Living Arrangements Community Integration Employment/Day

Programs List from WIC §

4512(b)

PURCHASE OF SERVICE POLICIES Guidelines for purchasing services and

supports. Explain the requirements for receiving

services and sometimes set limits. Policy not law. Vary from regional center to regional

center. Must be cost-effective. Can only request payment from

parents Day Care, A portion of 24 hour out of home care for minors, Family Cost Participation Program, and Annual Program Fee.

GENERIC SERVICES

Generic services are services you can get from another agency that serves the general public.

WIC § 4644(b). The law says you must use generic services

before the regional center pays for similar services. WIC § 4648(a)(8) and WIC § 4659.

USE OF GENERICS

If you or your family are eligible for Medi-Cal, Medicare, the Civilian Health and Medical Program for Uniform

Services (CHAMPUS-otherwise known as TRICARE), In-Home Support Services (IHSS), California Children’s Services (CCS), private insurance, or a health care service plan,

and you or your family choose not to apply for these services, then the regional center cannot purchase those services for you.

LACK OF GENERICS

If you or your family does not meet the criteria for the generic services above, then the regional center can purchase these types of services for you. The regional center can also help you access generic services.

If you, or where appropriate, your parents, legal guardians, or conservators, have no such benefits, the regional center cannot use that fact to negatively impact the services you may or may not receive from the regional center.

MEDICAL AND DENTAL SERVICES A regional center can only buy medical or dental services for

you if you are over age 3 and: You or your family show the regional center that Medi-

Cal, private insurance, or a health care service plan has denied the medical or dental service; and

The regional center decides that an appeal would not have merit.

The regional center may pay for medical or dental services: While you or your family are trying to get medical or

dental service from another agency or private insurance and you have not yet been given a denial;

While you or your family are waiting for a final administrative decision and you already provided the regional center with information that you are appealing; or

Until Medi-Cal, private insurance or a health care service plan begins to provide the services.

SECURING SERVICES The regional center

must investigate and use creative and innovative ways to meet the family’s need and keep the child in the family home. WIC § 4685(c)(2)

There shall be no gaps in service.

It is the regional center’s responsibility to ensure that all needed services are being provided.

2011 CHANGES TO THE LANTERMAN ACT

In some situations, the regional center is barred from purchasing these services for 18-22 year olds.

Day program Vocational education Work services Independent living program Mobility training and related

transportation services Welfare & Institutions Code Section

4648.55

EXCLUSION

18-22 year olds who have graduated with a Diploma or a Certificate of Completion/Achievement.

THREE GROUPS

Group #1. If you are 18-22 and you are still in school and you are either receiving or you want/need to receive one or more of the services listed previously.

Group #2. If you are 18-22 and you are not in school but are currently receiving one of the services previously listed from the regional center.

Group #3. If you are 18-22 and you are not in school and you are not getting - either from the school or from the regional center - any of the previously listed services.

GROUP #1 – ATTENDING SCHOOL

If you are 18-22 and still in school, the IPP team has to determine whether the school can meet your needs for the previously listed services.

If the school can, regional center must help you access those services.

If the school can’t, or you meet an exception, the regional center can purchase those services.

GROUP #2 – LEFT SCHOOL AND CURRENTLY RECEIVING SERVICES

If you are 18-22 and have left school, the IPP team has to determine whether the school can meet your needs for the previously listed services.

If the school can, regional center must help you access those services.

If the school can’t, or you meet an exception, the regional center can purchase those services.

If you are currently receiving the services, you are entitled to a NOA and eligible for aid paid pending.

GROUP #3 – LEFT SCHOOL AND NOT RECEIVING SERVICES

If you are 18-22 and have left school, the IPP team has to determine whether the school can meet your needs for the previously listed services.

If the school can, regional center must help you access those services.

If the school can’t, or you meet an exception, the regional center can purchase those services.

EXEMPTION

There are 2 ways to get an exemption:

An exemption may be granted if there was an individualized determination that an extraordinary circumstance exists that justifies granting an exemption; or

An exemption must be granted if, through the IPP process, it is determined that the school cannot appropriately meet your needs for services.

EXAMPLES OF EXTRAORDINARY CIRCUMSTANCES

Health and Safety Least Restrictive Environment IEP Services are NOT Available Extraordinary Family Circumstances

HEARING DECISIONS

Christian G. v. FNRC – Transportation Denied for student to/from his part-time job.

David R. v. ACRC – Consumer left school with a Certificate of Completion at age 18. Then at age 20 he requested a day program. ALJ denied funding for day program under generic resources provisions following testimony about available programs from the local school district.

Derek C. v. HRC – Student request “community participation training” and ALJ granted it because it is not on the list of services in the statute.

REGIONAL CENTER APPEAL PROCESS

APPEAL PROCESS FOR REGIONAL CENTER

Written Notice of Action/Hearing Request Informal Meeting Mediation Fair Hearing

WRITTEN NOTICE OF ACTION

If you disagree with a Regional Center decision you have the following rights which should be outlined in the notice: Notice of the decision, Notice of hearing, Have an authorized representative, Examine the agency’s file about you. Examine the records that the agency used in

making the decision, and To a timely and adequate hearing

AID PAID PENDING

If you appeal a reduction or cancellation of services within 10 days of your receipt of the notice of action your services will continue during the appeal process.

INFORMAL MEETING The first step in the hearing process. A meeting between you (and your

representative, if you have one) and a regional center representative.

The purpose is to resolve the issue or at least clarify or reduce the disagreement for hearing.

The decision will go into effect in 10 days after the meeting, unless you indicate disagreement by requesting mediation or a hearing.

You do not have to participate in an informal.

MEDIATION Voluntary for both parties. An independent, trained mediator informally

meets with you and a regional center representative.

Takes place within 20 days of your request for hearing.

The mediator tries to find common ground and new solutions.

The mediator has no power to force an agreement.

If you reach agreement, you sign a private agreement and the appeal process stops.

If you do not reach agreement, you proceed to fair hearing.

FAIR HEARING Must take place within 50 days of your

hearing request unless a delay is requested for good cause.

5 days before hearing you and the regional center send each other your exhibits and a list of witnesses.

Hearing is held before an Administrative Law Judge from the Office of Administrative Hearings.

AT THE HEARING

The regional center has to go first. The burden of proof is on you if it is a

new service or an increase in services. You have to prove why you should get the service.

AFTER THE HEARING

The judge will issue a decision within 10 days of the end of the hearing.

OTHER AGENCIES

DEPARTMENT OF REHABILITATION

DR assists people with disabilities in obtaining and retaining meaningful employment and living independently in their communities.

DR provides for vocational and independent living services to people with disabilities if: You have a physical or mental disability which is

a substantial impediment to employment; and You require services to prepare, secure, retain or

regain employment. DR usually begins working with students 2

years prior to their scheduled graduation.

ELIGIBILITY

Eligibility is based on: A review of the individual’s daily life; Their ability to participate in major life activities

as they impact an employment outcome; The impact of an individual’s impairment in each

of the functional capacity areas: Communication, Interpersonal skills, Mobility, Self-care, Work skills and Work tolerance.

DR services are required to prepare for, secure, retain, or regain employment; and

The individual can benefit from the provision of vocational rehabilitation services.

LEVEL OF SIGNIFICANCE OF DISABILITY (LSOD)

DR will review an application and information obtained about the individual’s disability and assess how it limits them in five areas of functioning.

Based on this assessment, DR will give them a LSOD score that represents the significance of their work-related limitations.

The LSOD assessment score, will usually be completed within 90 days from the date of application.

SERVICES AVAILABLE FROM DR

Diagnostic and related services

Vocational testing Skills assessment Vocational

counseling Vocational training Placement

assistance Tools, equipment for

job placement

Physical restoration Transportation

allowance Occupation licenses Supported

employment services

Reader services for the blind

Interpreter services for the deaf

INDIVIDUALIZED PLAN FOR EMPLOYMENT (IPE)

Equipment and services must be described in a written document, called an Individualized Plan for Employment (IPE). If you need technology, your IPE must include the following: The specific rehabilitation technology services you

need; How the technology will be provided to you in the

most integrated setting; and Who will provide the technology and any services

related to its acquisition and use. 34 C.F.R. §361.22(a)(2) requires that students with

disabilities who are eligible for DR services have a properly signed IPE in place prior to the students’ exit from school.

DEVELOPING AN IPE

Select an employment outcome Specify the DR services to be provided under

the plan Specify the entity that will provide the

vocational rehabilitation services Specifies the methods used to provide the

services Services must be authorized and approved

by DR prior to their purchase

ROLES AND RESPONSIBILITIES FOR DR AND SCHOOL

The Local Education Agency (LEA) and Department of Rehabilitation (DR) use a collaborative team process

Both the IEP and the Individual Plan of Employment (IPE) include a statement of interagency responsibilities detailing how the services shall be provided

The school district is the lead agency for providing transition services to the point of exit from school.

DR is designated as the lead agency responsible for providing services after the point of exit.

RESOURCES

http://www.pacer.org/tatra/ www.tknlyouth.info http://weconnectnow.wordpress.com/job/

DEPARTMENT OF MENTAL HEALTH

The legislature decided to utilize state and county agencies to provide certain related services (Mental Health, OT, and PT) in lieu of the local school districts.

CCS provides OT and PT. CMH provides Mental Health services. However, the local school district remains

responsible for ensuring the services are provided.

2010 ERADICATION OF FUNDING

In 2010, the funding for MH services under 3632 was eradicated.

School districts remain responsible for ensuring that IEPs are implemented.

Any change to a service must go through the IEP process.

Go to http://www.cde.ca.gov/sp/se/ac/ for more information and updates.

POST SECONDARY EDUCATION

PSE is education beyond what is considered typical of high school education (ages 18-22)

Options for students with intellectual disabilities include:

Transition Programs Community Colleges Four-year Colleges and Institutions Vocational-Technical Colleges Various forms of Adult-Education

ROP

There are 72 Regional Occupational Center/Programs (ROC/P) in California that offer: community classroom programs and unpaid on-

the-job training related to the students’ instructional programs

paid work experience related to the student’s classroom instruction under the supervision of the employers

www.carocp.org

HEALTH CARE PROVIDERS

Partial Hospitalization Programs Adaptive Equipment Health Services

RESOURCES

Websites Disability Rights California

http://www.disabilityrightsca.org/ Office of Administrative Hearings

http://www.oah.dgs.ca.gov/ California Code of Regulations – Title 17

http://ccr.oal.ca.gov/ California Laws at Findlaw

http.//ca.findlaw.com/

OCRA OFFICES If you know the name and phone number of

your local OCRA office, you may contact that office directly.

If you do not know the name of the staff in your local OCRA office, call toll-free:

Northern CA (800) 390-7032 or Southern CA (866) 833-6712. TTY (800) 669-6023. On-line staff directory at

www.disabilityrightsca.org.