Transition to Adulthood – Practical and Legal Strategies to Support the Planning Process

1. Transition to Adulthood – Practical and Legal Strategies to Support the Planning Process Katie Hornberger Attorney Supervising Clients’ Rights Advocate OCRA Disability Rights California April 21, 2012

2. 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.

3. Agencies Involved in Transition • School • Regional Center • Department of Rehabilitation • Mental Health • Post-Secondary Schools • Health Care Providers

4. Special Education

5. 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.

6. 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.

7. 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

8. 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.

9. Members of a Transition Team • Peers • Advocates • Parents • Teacher • Counselors • Independent Living Center • Disabled Students Programs • Employer • Other resources

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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?

16. 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

17. 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.

18. 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

19. Due Process with the School District

20. Disagreeing with the IEP • Goals • Placement • Services • Supports

21. 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.

22. 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.

23. 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.

24. 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

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. After Due Process • Hearing decisions can be appealed to superior court within 90 days of the decision.

33. Special Education and Regional Center

34. 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

35. 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.

36. 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.

37. Regional Center

38. 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.

39. 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)

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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

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

48. 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.

49. 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.

50. 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.