transition under the idea and alternatives to guardianship southern maine autism conference...

Transition under the IDEA

and

Alternatives to Guardianship

Southern Maine Autism Conference3/14/2015

Advancing the Rights of People with Disabilities Since 1977

24 Stone Street, Suite 204Augusta, Maine

04338-2007

1.800.452.1948207.626.2774

[email protected]

DISCLAIMER: This presentation and any accompanying materials are intended as an introduction to the legal rights of students in Maine. Nothing in this presentation should be considered legal advice. No attorney client relationship is created through this presentation.

PART 1 – Transition under the IDEA (30 minutes)

PART 2 – Alternatives to Guardianship (30 minutes)

Questions? (15 minutes)

School Districts are required, by the IDEA, to…

IDENTIFY children suspected of having a disability and needing services

EVALUATE them in all areas of suspected disability to determine if they need special education

SERVE students by providing FAPE in the LRE.Free Appropriate Public Education

Provided in conformity with Individualized Education Program (IEP) and “reasonably calculated” to provide educational benefits to the student

Least Restrictive Environment Students must be educated, to the maximum extent appropriate, with non-disabled peers.

COMPLY with procedural safeguards

Purpose of the IDEA

“Ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special

education and related services designed to meet their unique needs and prepare them

for further education, employment, and independent living.”

20 U.S.C. §1400(d)(1)(A)

Transition

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;

Transition (cont.)


(B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and

Transition (cont.)


(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.

Transition in the IEP

Beginning not later than the 9th grade, and updated annually thereafter, IEP must include:

• appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and

• the transition services (including courses of study) needed to assist the child in reaching those goals.

• transition services can either be specialized instruction or related services or supplementary aids and services.

Specially Designed Instruction

• Specially designed instruction: means adapting, as appropriate to the needs of the child, “the content, methodology, or delivery of instruction” in order to:– Address the unique disability related needs of the

childAND– “To ensure access of the child to the general

curriculum, so that the child can meet the educational standards…that apply to all children”.

Related Services

• Related services: transportation and other supportive services as are required to assist a child with a disability to benefit from special education

• Includes the following services: speech language pathology, audiology, interpreting, psychological, physical therapy, occupational therapy, recreation (and therapeutic recreation), counseling, rehabilitation counseling, orientation and mobility, medical services for diagnostic or evaluation purposes, school health, nurse and social work, parent counseling and training, and transportation.

Supplementary Aids and Services

• Supplementary Aids and Services: Aids, services, and other supports that are provided in regular education, education related and in extracurricular and nonacademic settings “to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate”

Vocational Evaluation under MUSER

“Every child with a disability between 16 and 20 years of age may be provided an opportunity for an interest and aptitude evaluation. Such evaluations may include job sampling and practical experiences if determined to be appropriate. Such vocational evaluations may be provided by qualified evaluators. The purpose of the vocational evaluation is to assist the IEP Team to identify child’s vocational interests, his/her vocational strengths, and deficits in work skills and behaviors that would interfere with appropriate educational programs and services that would be reasonably expected to result in the gainful employment of the child.”

Vocational Evaluation under MUSER (cont.)

“Based on the results of such an evaluation, a component of the child's Individualized Education Program shall be developed to include special education, supportive services and vocational services necessary to accomplishthe identified vocational goals. A representative of the appropriate regional career and technical agency or program shall be invited to participate the development of this component of the child’s Individualized Education Program.”

Transition: Participating Agencies

• Any agency other than the district that is financially and legally responsible for providing transition services to students is termed a participating agency.

• The district must invite a representative of any participating agency to the IEP team meeting that is likely to be responsible for providing or paying for transition services (with consent).

• If a participating agency fails to provide the transition services described in the student's IEP, the district must reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student.

Graduation

-Entitlement to a free, appropriate public education (FAPE) continues until either:

a) graduation with a regular high school diploma orb) the end of the school year when a student turns 20.

*Graduation from high school with a regular high school diploma constitutes a change in placement, which triggers the procedural safeguards of the IDEA.

*Regular high school diploma does not include an alternative degree “that is not fully aligned with the State’s academic standards.”

Graduation in Maine

• “A district must graduate a student who meets the content standards of the system of learning results and meets all other graduation requirements; further, there is no such thing as a right to refuse a diploma.” From Maine DOE “Listen and Learn 2/14/2013

• This guidance has been misapplied and misused by many districts, who are graduating students only on credits, even if, for example, they are fully self contained in a life skills program and read below a 2nd grade level.

Graduation in Maine(as of February 2013)

• But see: 20-A MRSA 6206• “Parameters for essential instruction and

graduation requirements. Each student shall study and achieve proficiency in the areas of: A. Career and education development; B. English language arts; C. World languages; D. Health, physical education and wellness; E. Mathematics; F. Science and technology; G. Social studies; and H. Visual and performing arts.”

Graduation in Maine(as of February 2013)

• And: MDOE Rule Chapter 127• “Diploma” means the certificate awarded to a

student who has met applicable content standards of the system of Learning Results as determined by the local assessment system and any additional requirements established in school board policy.

Maine Graduation beginning 1/1/18, or….????

• A diploma will be awarded only if the student achieves proficiency in the same standards as required of other children as specified by the goals and objectives of the child’s IEP.

Remedies for Inappropriate Transition Planning?

• Inadequate transition planning/transition plan may constitute a denial of FAPE.

• Substantiated claims of FAPE denial may result in compensatory education (including transition services) delivered after graduation.

Selected Authorities

Note: These selected authorities are meant to spark discussion and to give you an idea of how some courts and other decision makers have addressed transition concerns. Some of these authorities may carry little or no weight in Maine.

Lessard v. Wilton-Lyndeborough Coop. Sch. Dist.

518 F.3d 18 (1st Cir. 2008)

• Student challenged transition planning for several reasons, including that community based services were not sufficient.

• Holding the District Court “did not clearly err in finding the panoply of transition services inadequate.”

• Challenged services included: 6 hours of pre-vocational training each week; regular specialized instruction in transition related skills, and monthly community based experiences (field trips).

Dracut Sch. Comm. V. Bureau of Spec. Ed. App., Mass. Dept. of Educ.

737 F.Supp.2d 35 (D.Mass.2010)

• Affirmed determination of the hearing officer that the District “operated without meaningful assessments for most of the two year period in question and never provided appropriate, measureable goals related to [the Student’s] needs….this led directly to [the District’s] failure to propose appropriate transition plans and services.”

Dracut (cont.)

• Determined the hearing officer did not err in finding that there was no basis for concluding that the skills the Student learned in his school based internships were transferable to work sites in the community, and “[t]o provide minimally useful transition services regarding employment” the school “should provide community based internships.

Dracut (cont.)

• Determined that the hearing officer “reasonably determined that the services were not reasonably calculated to supporting independent living outside of high school, such as maintaining self-hygiene and learning transportation skills. Indeed [the Student’s] plan for daily skills addresses only his independence in the school environment.”

Carrie I. v. Hawaii Dept. of Educ.896 F.Supp.2d 1225 (D.Haw.2012)

• No transition assessments were done prior to developing the transition plan. And the court found that the “lack of assessments alone is enough to constitute a lost educational opportunity.”

• The court also found the failure to invite a representative from the state vocational rehabilitation agency to the meeting to be a significant procedural violation resulting in lost educational opportunity.

Forest Grove Sch. Dist. v. Student2014 WL 2592654 (D.Or.2014)

• Transition plans violated the IDEA because they were not based on age appropriate transition assessments. Only assessment conducted before finalizing the IEP was a “brief discussion” with the Student and a member of the IEP Team about “interests in employment, living arrangements, and transportation.”

Marple Newtown Sch. Dist. v. Rafael N.2007 WL 2458076 (E.D.Pa.2007)

• Determined that “the IEPs state generic goals that have remained static from year to year. None of the Student’s vocational of independent learning outcomes contains a community component. The IEPs also do not include a component to prepare Student for medical self-monitoring. Most importantly, the IEPs do not take into account Student’s strengths or preferences. I will affirm the appeals panel finding that the District did not provide a meaningful transition plan for Student once he turned 16.”

Jefferson Cty. Bd. Educ. V. Lolita977 F.Supp.2d 1091 (N.D.Al.2013)

• Court reversed the finding of the hearing officer that transition services were appropriate because services were not based on meaningful transition assessment.

• And the Court “does not agree with the hearing officer that because M.S. received some vocational and career based training along with the rest of the freshman class that was not personalized to his unique needs, he received adequate transition services.”

• “Finally, the Court does not agree that M.S.’s alleged depression and low cognitive functioning means he is not ‘positioned’ to receive a more substantial transition plan.”

Los Angeles USD 62 IDELR 68, (Ca. SEA 2013)

• 19 year old student with autism challenged his graduation on the basis that he did not have the requisite academic, transitional and self help skills required to graduate, and that he was simply given passing grades.

• Appropriateness of transition planning was also challenged.


• “The evidence at hand substantially demonstrates that the District failed to administer comprehensive age appropriate assessments to determine Student’s postsecondary transition needs…The resulting transition plans were inadequate and not congruent with the Student’s unique needs.”

• As a remedy the ALJ ordered a compensatory transition plan to be developed by an independent consultant, after assessment.


• Student’s curriculum was “so thoroughly modified for him that it bore almost no resemblance to the curriculum of his class.”

• For example, if the class was reading a text at the 12st grade level, the Student would be asked a simple “Wh” question regarding the text and be assisted in answering it by an aide.

• If the class was writing a 5 paragraph essay, the student would be asked to write a single sentence “and was frequently unable to accomplish this even with assistance”


• It is not objectively reasonable to conclude that a student….who struggles with simple addition, does not understand what a question mark is, and cannot write a sentence, is able to receive a “C” in algebra II, “B’s” in contemporary composition and American literature, and “A’s” in U.S. History and economics.”

• As a result, the District denied the Student a FAPE “by unlawfully graduating him and terminating his special education rights”, and was ordered to provide a FAPE until the end of the year the Student turned 22.

Letter to Spitzer-Resnick, et alOSEP (June 22, 2012)

LRE provisions apply equally to the employment portion of the student’s program and placement.

Transition time for us…

“Beginning not later than one year before the child reaches the age of majority under State law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the Act, if any, that will transfer to the child on reaching the age of majority…”.

What is guardianship?

Guardianship is a formal judicial process. It begins when someone petitions for guardianship over someone else. After a hearing, the judge will issue an order establishing that guardianship is not needed, a full guardianship is needed, or a limited guardianship is needed.

Types of guardianship:

- Full guardianship: - Generally, a full guardian has a relationship with

his ward as a parent does to a minor child. - Characterized as “civil death” because the person

is stripped of legal capacity and deprived of many constitutional fundamental rights (ex: freedom of association, right to marry, etc.)


- Limited guardianship: - The guardianship order specifies only certain legal

powers and duties of a guardian. - A person under limited guardianship retains all

legal and civil rights except those suspended by the order.

- Ex: medical guardianship, financial guardianship, residential guardianship, etc.


• Temporary guardianship– Guardianship can also be obtained for a limited

duration of time based on the person’s progress or temporary circumstances.


Private guardian- Any private person (friend/family member) who is

appointed as a guardian. Public guardian- When the State is appointed as a guardian.

- The State generally assigns someone (usually a case manager) to be the guardianship representative.

When does guardianship happen:

For someone with a developmental disability guardianship is typically considered:

- At age 18- After a significant event

Why do you think this is?

Standards of guardianship:

- The judge will determine whether you are an “incapacitated person”- Someone with a disability - Someone who does not make responsible

decisions

* Think back to those two circumstances (18 and significant event). Are these good times to judge incapacity? What is the dignity of risk?

Standards of guardianship

How sure does the judge have to be about the order?

Standard of proof: - Preponderance of the evidence (>2009) - Clear and convincing evidence (<2009) - Beyond a reasonable doubt (?)

Process of guardianship:

Someone files for a finding of incapacity and appointment of a guardian

- A date for hearing is set - A visitor/guardian ad litem/or attorney is

appointed - If at any time the incapacitated person wishes

to contest any aspect of the proceeding, the court shall appoint any attorney to represent them.

Process of guardianship:

The person is examined by a physician or licensed psychologist and a report is submitted to the court.

- PP-505

*The PP-505 is not sufficient alone to describe the person’s circumstances.

Process of guardianshipThe visitor will (at minimum):- Interview the person and the person’s proposed

guardian. - Visit the person’s home and the proposed home- The visitor will explain the meaning and possible

consequences of the guardianship to the person and ask whether the person wants to attend the hearing and/or contest any of the guardianship issues.

- The visitor will write a report and give it to the judge.

Rights of the person at hearing:

- Right to be present at the hearing- Right to see and hear all evidence - Right to be represented by an attorney - Right to present evidence - Right to cross-examine witnesses (including

the physician, visitor/guardian ad litem)- Right to request a closed hearing

After an order is made

• Most records are public: – www.maineprobate.net

http://www.maineprobate.net/

Alternatives to guardianship

• Guardianship should only be considered after other options have been explored and ruled out. – Increased support (family/friends and/or services) – Supported decision making – Mediation – Financial management strategies – Healthcare management strategies

Supported Decision Making• Supported Decision Making- at its essence creates a

system where individuals receive support in decision making instead of a decision-maker.

• The UN Convention on the Rights of Persons with Disabilities, expects that people should make their own decisions wherever possible, and that if they need help, they should get the support that they need to make decisions.

• Ex: Canada, United Kingdom, Australia• Recent Jenny Hatch case:

http://jennyhatchproject.info/

http://jennyhatchproject.info/

Power of Attorney

• Power of attorneys can be executed for any type of decision.

• It’s a contract granting co-existing decision making power to someone else.

• Notarized and signed by both parties. • Can be revoked at any time.

Additional management strategies

• Financial and medical: – Power of attorney financial – Bill payment services – Representative payee– Special needs trust– Power of attorney medical – Advance healthcare directives

Rights under guardianship:

• Right to vote – Prior to 2001, if you had a mental health disability

and were under guardianship, you lost the right to vote.

– This was declared unconstitutional (Doe v. Rowe)


• Right not to be sterilized without a court order. – Due Process in Sterilization Act– A hearing to determine ability to give informed consent for

sterilization• Court finds person can give informed consent- court will respect

their decision. • Court finds person can’t give informed consent- court will only

allow sterilization if A) less dramatic methods of sterilization have proved unworkable and B) it’s necessary to preserve the physical or mental health of the person.


• Right to challenge the guardianship: – The person has the right to challenge their

guardianship at any time, before/during/or after the guardianship has been established.

– To initiate termination proceedings, the person needs only to write an informal letter to the court telling them that they want to end their guardianship.


• Though the guardian can make the decision, they may not be able to force the outcome they want. – “Although a guardian is entitled to establish the

ward’s place of abode, nothing prevents the ward from simply walking away from the chosen residence.” Guardianship of Hughes, 715 A.2d 919

Rights under guardianship and receiving services:

- Someone who is providing services to a person under guardianship cannot make guardianship decisions for that person.

- A person receiving services that are licensed, funded, or regulated by the Department of Health and Human Services has additional rights.

- These rights cannot be restricted or waived by that person’s guardian.

Rights of persons receiving services- An overview:

• Humane treatment • Practice of religion • Communications• Work • Vote• Personal Property • Nutrition• Medical care• Sterilization • Social Activity • Physical exercise

Rights of persons receiving services- An overview:

• Right to behavioral management plans and restraint programs which conform to DHHS regulation.

• Right to be free from inhumane discipline, seclusion, corporal punishment, totally enclosed cribs/beds, painful stimuli.

Rights

• Rights of persons receiving services is a broad topic that requires its own separate training.

• If you are interested in receiving this training, please do not hesitate to contact the Disability Rights Center.

Questions?

1.800.452.1948207.626.2774

[email protected]

transition under the idea and alternatives to guardianship southern maine autism conference...

Documents

transition services

adult education

minutes slide

vocational education

special education

related services

secondary education

adult services