Postsecondary Transition and the Courts

Method

An electronic search of the Special Ed Connection® was conducted for January 1, 2012, to December 31, 2013, using the following search terms: secondary transition, postsecondary transition, and transition planning. Cases were then screened for inclusion criteria, which included the following:

This yielded six cases meeting inclusion criteria. Of these, three rulings were in favor of the districts having provided a FAPE, and three rulings were in favor of the students and their families.

Transition-Related Litigation in 2012 and 2013

In 2012, only one case involving a FAPE and postsecondary transition was located in the search. Carrie I. v. Department of Education, State of Hawaii (2012) addressed the least restrictive environment (LRE) for Greg I., a teenager with autism and Landau–Kleffner syndrome. Greg I. lived at a private mental health facility where he received special education services, speech therapy, occupational therapy, and one-on-one skills training. In July 2010, the IEP team met for Greg’s annual review. During the meeting, the placement of Aeia High School was offered as an LRE. However, the IEP team failed not only to discuss other options but also to consider the potential harmful effects of a public school placement. The District asserted that Greg would benefit from being educated with his nondisabled peers; however, his mother asserted the physical location of the school, combined with her son’s behavioral difficulties, could be detrimental to his education and personal safety. While Greg had a functional behavioral assessment, a behavioral support plan, and a crisis plan for his seizures, these assessments and plans were not brought to the original or follow-up IEP meeting. The District also failed to administer a comprehensive evaluation “at least once every 3 years” unless a parent and the public agency otherwise agree (34 C.F.R. § 300.303(b)(2)).

The District Court held that these procedural violations (i.e., failure to consider the potential harmful effects of a change in placement and failure to administer a triannual evaluation), along with the Department’s failure to develop an appropriate postsecondary transition plan, required it to continue the student’s private placement. Regarding postsecondary transition, the team relied on a prior version of the IDEA when developing the student’s transition plan, whereby they identified the agencies responsible for providing transition services. The District failed to meet IDEA 2004’s requirements for conducting age-appropriate transition assessments, developing appropriate postsecondary goals, and identifying the services needed to reach those goals. Finally, a representative from the state adult service agency that was likely to be responsible for providing or funding the student’s transition services (in this case, the vocational rehabilitation division) was not invited to attend the IEP meeting. The District’s failure to comport with the IDEA’s procedures for the LRE and postsecondary transition planning resulted in a denial of a FAPE.

The five cases heard in 2013 also occurred at the District Court level. In Patterson v. District of Columbia (2013), A.P. was a 16-year-old student who was eligible for special education services. In August 2011, after four psychiatric hospitalizations, A.P.’s mother, Ms. Patterson, placed A.P. at a residential school located in Georgia. The District of Columbia continued to take responsibility for A.P.’s special education services.

On January 24, 2012, a multidisciplinary team revised A.P.’s IEP. The revised IEP provided for specialized instruction for 30 hr per week, counseling for 3 hr per week, a behavior intervention plan (BIP), and a transition plan (A.P. was going to turn 16 in the year the revised IEP was implemented). The 2012 transition plan indicated A.P. “will discuss educational choices with the guidance counselor or other school personnel”; “will explore occupational choices including the area of law”; and “will discuss the importance of vocational rehabilitation with [a] special education coordinator,” A.P. completed a career assessment that produced a ranked list of careers that interested A.P.; however, no particular educational or career goal was listed in the IEP.

When A.P. began attending Coolidge Senior High School in the District of Columbia, her mother filed a due process complaint alleging that the IEP was inappropriate because the District failed to conduct a vocational assessment. In November 2012, the Hearing Officer found that the IEP lacked appropriate measurable postsecondary goals based on a transition assessment. The Hearing Officer directed the District to revise the 2012 transition plan but found that A.P. had not been denied a FAPE because she was doing very well academically and functionally. In January 2013, the District enacted the 2013 transition plan. A.P. took the Brigance Educational Interest Assessment and the Brigance Career Choice Assessment. These assessments showed A.P. understood the importance of graduating from high school and that she planned to go to college to study criminal justice to become a judge or parole officer. To reach these identified goals, the new transition plan noted that A.P. would locate the sources that can provide her with helpful materials and information about her career choice and would complete 100 hr of community service to explore and research her career interests.

In February 2013, Ms. Patterson filed suit appealing the hearing officer’s decision, asserting that the District failed to provide a FAPE because the 2012 transition plan was inappropriate. Because the District provided a more substantive 2013 transition plan, the initial 2012 plan was not a substantive denial of a FAPE.

In Jefferson County Board of Education v Lolita S. (2013), Lolita S. requested a due process hearing, claiming that the District had violated her son’s right to comprehensive evaluations and FAPE in the LRE, including related services and individualized academic instruction. Lolita S. contended that her son, M.S., failed to make reasonable progress in numerous areas. She sought relief of reimbursement for her out-of-pocket expenses, including attorneys’ fees and the fee for independent educational evaluations (IEE). Among the findings of the evaluation included the clinical psychologist’s recommendation that the district should perform a transition assessment to examine M.S.’s skills and provide a social skills program, assistive technology, a functional reading assessment to determine the appropriate reading program, intensive instruction in reading and math, and a behavioral management plan to improve his motivation. The administering psychologist characterized these recommendations as designed to enable M.S. to make reasonable progress.

The due process hearing extended the course of 5 months. In May 2012, the hearing officer found in the District provided M.S. with a FAPE. Specifically, the transition services M.S. received met IDEA requirements, because the services were preparing him for postsecondary living. However, the hearing officer found in favor of Lolita’s request for public funding of the IEE. Specific citations of services included M.S.’s participation in a class to improve note-taking, class preparation, organizational skills, and career planning. Outside contractors came to the school twice a week to aid the class in job assessments and interests. The court held that the District’s use of a generic reading goal suitable for a ninth-grade student did not meet IDEA’s requirements of individualized and measurable goal setting. Furthermore, this reading requirement was six grade levels beyond M.S.’s ability.

The transition-planning portion of the IEP did not meet IDEA requirements in multiple ways. First, the transition assessments were unspecified and produced vague results that M.S. needed to improve his personal management. Second, the transition goal was not individualized and remained the same as the previous year. The transition goal—“the student will be prepared to participate in postsecondary education” (p. 50)—was not individualized to meet the student’s needs. This use of “stock language” was magnified by the fact that M.S. was on the Alabama Occupational Diploma track. Given the possible 12 areas of offered transition services, M.S.’s IEP only specified his needing one service, personal management. Vocational evaluation, employment development, postsecondary education, financial management, transportation, living arrangements, advocacy/guardianship, community experiences, and linkages to agencies were not listed as needed services. The District Court found that the failure of the 2011–2012 IEP to include required individualized transition goals, transition assessments, and transition services means that the IEP did not comply with the IDEA. Based on the inappropriate reading goals and transition plan, the Court found the District failed to offer the student FAPE.

In Gibson v Forest Hills School District Board of Education (2013), the parents of Chloe Gibson, a 20-year-old with multiple disabilities, filed a due process complaint against the Ohio Department of Education. Her parents alleged that the Forest Hills school district had failed to provide Chloe a FAPE. Although school district personnel and Chloe’s parents disagreed on many aspects of her IEP and placement, one of the issues that led to the complaint arose when Chloe was at the age in which transition assessments and plans were to be discussed at her IEP team meeting. Chloe’s IEP team, however, did not invite her to the IEP meeting because team personnel later asserted that they were concerned about her ability to tolerate a lengthy, possibly contentious, IEP meeting where issues would be addressed that were “well above her comprehension level” (p. 24). Chloe’s parents also raised a number of other issues in their complaint.

In April 2011, the independent hearing officer (IHO) ruled that the school district had denied Chloe a FAPE because of deficiencies in her IEP and ordered the district to develop additional IEP goals and provide compensatory educational services. The IHO also held that the Gibsons were not the prevailing parties, despite having ruled that the school district failed to provide a FAPE in some areas because Chloe’s parents bore some of the responsibility for the school district’s failures. The Gibsons then appealed the IHO’s decision to the Ohio Department of Education’s State Review Officer (SRO). The SRO issued a ruling that the Forest Hills School District had offered Chloe a FAPE. In addition, the SRO determined that there was overwhelming evidence that the Gibsons had been meaningfully involved in their child’s IEP team, despite their contentious nature. The SRO upheld the IHO’s decision that the school district needed to add goals to Chloe’s IEP and provide compensatory services. The SRO also agreed with the IHO that the Gibsons were not the prevailing party for purpose of awarding attorneys’ fees.

The Gibsons filed a complaint asserting they were prevailing party and were entitled to attorneys’ fees, while the school district initiated a separate suit asserting the IHO and SRO had erred when they required the school district to add goals to Chloe’s IEP and provide compensatory educational services. The Gibsons then filed a counterclaim asserting the SRO should have provided Chloe with compensatory educational services related to (a) assistive technology, (b) transition services, (c) LRE, (d) denial of a FAPE, and (e) denial of meaningful parental participation. On June 11, 2013, the federal district court issued a ruling in Gibson v. Forest Hills School District Board of Education. In its opinion, the court addressed each claim separately. For the purpose of this article, we will examine the court’s discussion of transition services.

The court noted that Ohio state law required that a school district “must invite” (p. 39) a student to an IEP meeting in which postsecondary goals and transition services would be discussed. The fact that Chloe had not been invited to her IEP meeting was undisputed. Thus, the court found that the Forest Hills School District had clearly violated this requirement. The court noted that the failure to include Chloe in the IEP meeting amounted to a procedural violation. The difficult question the court had to address was whether this procedural violation resulted in substantive harm and a denial of a FAPE. The court stated that this procedural violation would not have resulted in a denial of FAPE if the school district had taken other steps to ensure that Chloe’s preferences and interests were considered when developing her IEP. The court found, however, that the school district’s informal approach to determining Chloe’s preferences and interests (i.e., determining what she liked to do at school) was not sufficient. Moreover, the school district had not conducted an age-appropriate transition assessment of Chloe. Thus, the court concluded that the school district committed violations that resulted in substantive harm and a denial of a FAPE by failing to provide adequate transition services.

In Maksym v Strongsville City School District (2013), the parent of high school senior with brain damage and cerebral palsy asserted her son’s postsecondary transition needs were not being met during an eighth-period office aide assignment. The parent argued that no learning took place during this idle time and supported her claim by an e-mail from the guidance office secretary to her son’s teachers asking them to send work for him to complete.

In October of 2009, the IEP team met and discussed student’s educational goals and completed first draft of transition goals for upcoming IEP. The parent was invited but did not attend. The IEP team, including the parent, met again in November where the parent expressed that her son should receive less phonics instruction and more functional life skills to facilitate a smoother transition to the “adult” world. In addition, the parent requested that the school district conduct situational assessments. After a series of meetings, it was decided that the student be placed in a “community work experience” program for the first four periods of the day and three instructional periods in the afternoon. Two of these instructional periods focused on transition to work course that included embedded reading and math skills. The final period was initially a study hall. In a subsequent meeting, the parent objected to the eighth-period placement, and the school district assigned the student to the guidance office to work as an “aide.” During the February meeting, the parent continued to express concern about student’s eight-period assignments, and the student was then assigned to an art exploration class for 3 days each week.

A due process hearing held over the course of 14 hearing days where 13 witnesses were called to testify. The hearing officer found in favor of the school district concluding that plaintiff failed to establish that the school district violated the IDEA. The plaintiff appealed the decision to the Ohio Department of Education’s State Level Review Officer (SLRO) but only challenged two conclusions reached by the IHO: (a) School District committed a procedural violation of the IDEA by engaging in predetermination and (b) no educational benefit was obtained from his eighth-period placement. The SLRO rejected both arguments and affirmed the findings made by the IHO. The court held and rejected plaintiff’s argument and agreed with the conclusion of both IHO and the SLRO.

The plaintiff did not provide sufficient evidence to suggest predetermination. The plaintiff argued that his eighth-period placement in the guidance office as an aide was not reasonably calculated to confer an educational benefit because no learning happened during this period. The plaintiff also referred to an e-mail by the guidance office secretary requesting that plaintiff’s teachers send work so the student does not “sit and do nothing.” The school district argued that it is not legally required to “maximize student’s potential” or to “provide the best possible education.” Rather, the district need only offer an IEP that is calculated to “provide educational benefit.”

The Court decided the district had offered the student a FAPE because his IEP addressed his needs by primarily focusing on functional skills—reading, math, and vocational skills—to enable him to transition into adult life. The student made progress toward his IEP goals throughout the school year, and the eighth-period placement furthered these goals by providing in-school work experience to foster his chances for postsecondary employment.

In M.Z. on Behalf of J.Z. v The New York City Department of Education (2013), the parents of a child with “significant cognitive disabilities, language deficits, and severe difficulties with social interaction” (p. 2) rejected the school district’s IEP and their child’s placement at the Manhattan Occupational Training Center. The parents filed for a due process hearing alleging that the school district failed to provide a FAPE during the 2010–2011 school year because the IEP team had committed several procedural and substantive errors in the IEP process, including failing to (a) consider new evaluation information, (b) conduct a functional behavioral assessment (FBA), (c) design an appropriate BIP, (d) develop an adequate transition plan, (e) describe the child’s present levels of academic achievement and functional performance, (f) write measurable annual goals, and (g) offer an appropriate placement.

The IHO ruled that the school district had failed to offer a FAPE because of the issues regarding the evaluation, FBA and BIP, transition plan, and the IEP goals. The IHO also found that the school would neither have been able to implement the related services as required in the IEP nor did the placement provide sufficient academic instruction. The IHO, however, did find that the school district placement offered appropriate worksite opportunities. The school district then appealed to the SRO, who reversed the findings of the IHO, ruling that the school district had provided the student a FAPE for the 2010–2011 school year. The SRO decision noted that although the student’s transition plan was technically defective, the problems did not rise to the level of depriving the student of a FAPE. The student’s parents then appealed to United States District Court for the Southern District of New York.

The court examined the procedural and substantive adequacy of the student’s IEP and the decisions of the IHO and SRO. The court agreed with the IHO and SRO that the school district had committed flaws in the development and substance of the student’s IEP but sided with the SRO’s conclusion that these errors did not deprive the student of a FAPE. With respect to the student’s transition plan, the judge wrote that the transition plan failed to (a) specify activities that would help the student’s math and social skills, (b) determine which post–high school programs the student may be involved in, and (c) identify who would provide the transition services. The judge found that the deficient transition plan constituted a procedural flaw and that procedural errors in the special education process only lead to a denial of a FAPE when those errors impede the child’s right to a FAPE, significantly interfere with the parents’ right to be involved in the decision-making process, or cause a deprivation of educational benefits. Thus, the judge found that this particular error made by the school district (i.e., deficiencies in the transition plan) did not deprive the student of a FAPE.

Conclusion and Implications for Practice

In this section, we draw conclusions from these court rulings and present implications for school and district administrators. The components of the transition plan are meant to be connected to maximize the benefit for student transitions; however, transition plan development awaits more comprehensive quality measures. To ensure each student’s transition needs are met appropriately and to avoid costly legal involvement, it is essential for school personnel to understand the implications of relevant case law in postsecondary transition planning:

Special educators, transition specialists, and school administrators have an obligation to understand and follow the law as it relates to student transition planning. Based on the requirements of IDEA 2004, it is imperative that postsecondary transition plans be individualized. If school and district administrators approach postsecondary transition with a focus on quality rather than compliance, schools will avoid procedural and service-delivery violations that result in a denial of a FAPE (Prince et al., 2013).