Transition: Understanding ADA vs. IDEA

1. Transition: Understanding ADA vs. IDEA DRUMMOND WOODSUM Jeanne M. Kincaid

2. Transition to Higher Education

3. Child Find • IDEA • Birth to 21 (unless student graduates with regular education diploma), State or school district has duty to locate, evaluate and identify children who are suspected of being in need of special education • ADA/Rehabilitation Act • No child find duty • Notice of services

4. Import • False assumptions on the part of the parents and/or student that institution will “find” the student • Concerns over who to tell • Thus far, courts and OCR have upheld if institution has publicized process, student must follow the process

5. Eligibility - What • IDEA • Evaluation of an impairment that falls within 1 or more of 13 categories (if State uses categories) • That “adversely affects educational performance” • To such a degree as to warrant the provision of special education

6. Eligibility - What • ADA/Rehabilitation Act • No categories • Physical or mental impairment • Which substantially limits • 1 or more major life activities

7. Eligibility - Standards • IDEA – eligibility often linked to student’s potential • ADA/Rehabilitation Act – eligibility is based upon comparison to average person

8. Evaluations – When • IDEA - School district responsible • Initial • Periodic, but at least every three years • But team may decide to waive any or all assessments

9. Evaluations - When • ADA/Rehabilitation Act – Student responsibility • Postsecondary institutions have right to demand documentation meeting professional guidelines

10. Import • Colleges and universities are seeing less comprehensive recent assessments based on changes in the IDEA

11. Summary of Performance • Did Congress intend to have this document supplant documentation in postsecondary settings? • No

12. SOP Obligation • To the student • Before s/he ages out or graduates with a regular education diploma • Summarize academic and functional performance • Include recommendations for student to achieve postsecondary goals

13. Evaluations - Who • IDEA - Eligibility determinations are made by a team of qualified professionals, including the parent • ADA/Rehabilitation Act – the institution decides

14. Purpose - IDEA • Access to general curriculum • Supports and services to enable student to meet State’s standards • Provision of education in the least restrictive environment • Standard of care: an IEP that is reasonably calculated to enable student to obtain some educational benefit

15. Purpose – ADA/Rehabilitation Act • Access to programs, activities, services, advantages, benefits • No outcome expectations • No benefit expectations • Reasonable accommodation • No unlawful discrimination • Integration

16. Consent • IDEA – required for evaluations and first IEP • School may seek override of failure or refusal to evaluate but not initial provision of services • New regulation – parents can opt out of services entirely at any time • ADA/Rehabilitation Act – Institution may not implement accommodations that student refuses

17. Monitoring • IDEA – school is responsible for ensuring the appropriateness of the IEP and its implementation • ADA/Rehabilitation Act – Student is obligated to request specific accommodations, supported by documentation and institution may delegate to student responsibility to identify implementation issues

18. Qualification Standards • IDEA – hardly any • Schools may be required to provide modifications to the curriculum and lowering of standards • ADA/Rehabilitation Act • Student must meet academic and technical standards • Institution need not fundamentally alter program or lower standards

19. Services Offered - IDEA • Special education • Specially designed instruction to meet student’s individual needs • Related services • Evaluations, transportation, physical, speech and occupational therapies, counseling, rehabilitation, assistive technology evaluations and services, nursing services, paraprofessional assistance, etc.

20. Services – ADA/Rehabilitation Act • Reasonable modifications to rules, policies and procedures • Services and adjustments sufficient to enable student equal access to what institution provides • No personal services • College may have undue burden defense

21. Behavioral Supports - IDEA • Teams must consider positive interventions, strategies and supports when student’s behavior interferes with his/her learning or that of others • Removal from school beyond 10 school days requires • Functional behavioral assessment • Behavioral intervention plan • Manifestation determination

22. Behavioral Supports - ADA • None specifically • Changing the student conduct code is not recognized as reasonable

23. Goals • IEPs for students turning 16 must include appropriate measurable postsecondary goals in all the following areas: • Training • Education • Employment • And, if appropriate, independent living skills • 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa); 34 C.F.R. § 300.320(b)(1)

24. Transition Assessments • Goals must be based on age appropriate transition assessments related to: • Training • Education • Employment • Where appropriate, independent living skills • 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa); 34 C.F.R. § 300.320(b) • The federal law does not define “assessment”