POLICY LETTER: September 3, 2013 to W. Kelly Dude

Desktop\DOE_Logo_small.gif" * MERGEFORMAT States Department of EducationOffice of Special Education And Rehabilitative ServicesSeptember 3, 2013W. Kelly DudeAnderson, Dude & Lebel, P.C.Attorneys at LawPlaza of the Rockies North111 South Tejon, Suite 400Colorado Springs, Colorado 80902Dear Mr. Dude:This is in response to your letter to the Office of Special Education Programs (OSEP), written on behalf of several school districts in the Pike's Peak region of Colorado, requesting clarification regarding the secondary transition requirements in Part B of the Individuals with Disabilities Education Act (IDEA or Part B). In general, your questions relate to whether services at postsecondary institutions can be provided as part of a student's transition services identified in the student's individualized education program (IEP) under 34 CFR 300.320(b). I apologize for the delay in responding.Ensuring that all students, including students with disabilities, have the skills and knowledge necessary to succeed in college and the workforce will require higher standards of educational excellence. The Department is committed to ensuring that all students have the resources and supports needed for success in college and in a competitive workforce including the opportunity to enroll in educational programs that develop necessary knowledge and skills. OSEP believes that providing a high school student with a disability the opportunity to take one or more courses at a community college or other postsecondary institution prior to high school graduation can be critical in facilitating the student's transition from secondary school to college or the workforce. This letter will address how participation in courses at a postsecondary institution can occur consistent with Part B of IDEA. If under State law, attending classes at a poYour specific questions and OSEP's responses follow.Question 1:Does the IDEA require that school districts include language in a transition plan indicating that a student shall have access to attend a junior college, college or university (hereafter collectively postsecondary) upon the student's or parents' request? In a related issue, on what basis can a school district determine that such a student cannot reasonably benefit from attending post-secondary schools? OSEP's Response: As you know, transition services must be a part of a student's IEP beginning not later than the first IEP to be in effect when the student is 16 years of age, or younger, if determined appropriate by the IEP Team. 34 CFR 300.320(b). The term transition services is defined by 34 CFR 300.43 as follows:A coordinated set of activities for a child with a disability that(1) 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 postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;(2) Is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and includes-(i) Instruction;(ii) Related services;(iii) Community experiences;(iv) The development of employment and other post-school adult living objectives; and(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.Transition services for children with disabilities may be special education, if provided as specially designed instruction, or a related service if required to assist a child with a disability to benefit from spDecisions related to the specific content of postsecondary goals and transition services are the responsibility of the IEP Team, the required members of which are identified in 34 CFR 300.321(a) and (b). The parent and the student are required IEP Team members at IEP Team meetings where transition services and postsecondary goals are discussed. The IEP Team must consider the student's needs, taking into account the student's strengths, preferences and interests. 34 CFR 300.320(b)(2) and 300.43(a)(2). The IEP Team is required by 34 CFR 300.324(a)(ii) to consider the concerns of the parent for enhancing the education of their child; however, the IEP Team is not required to include a particular transition service or services in a student's IEP based solely on a parent's or student's request. The IDEA does not specify criteria for determining whether a student would or would not reasonably benefit from specific transition services. The IEP requirements in 34 CFR 300.320(b) for appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills should inform the IEP Team's decisions regarding transition services (including courses of study) needed to assist the child in reaching those goals. If the IEP Team determines that services in a community, technical, or other postsecondary program are necessary to assist the secondary school student in reaching his/her postsecondary goals and receiving FAPE, and those services are considered secondary school education as discussed above, the student's IEP Team could designate those as transition services and the school district could pay for those services with IDEA Part B funds. If attendance at postsecondary classes cannot be supported with IDEA Part B funds, as noted above, a State may elect to us Musgrove, Ed.D.DirectorOffice of Special Education Programscc: State Director of Special Education There are, however, exceptions to FAPE for certain ages in 34 CFR 300.102. Students with disabilities who have graduated from high school with a regular high school diploma are not entitled to FAPE. The IEP Team for a student who has not graduated from high school with a regular high school diploma has the full range of options available to provide FAPE, including providing appropriate transition services to facilitate the child's movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. 34 CFR 300.43. Under 34 CFR 300.17, FAPE means special education and related services that(a) are provide at public expense, under public supervision and direction, and without charge; (b) meet the standards of the SEA, including the requirements of this part; (c) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (d) are provided in conformity with an individualized education program (IEP) that meets the requirements of 300.320 through 300.324. Under 34 CFR 300.36, secondary school means a nonprofit institutional day or residential school, including a public secondary charter school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. OSEP interprets reasonably benefit to mean that the child's IEP, including transition services where appropriate, is reasonably calculated to enable the child to receive educational benefit. See Board of Education of the Hendrick Hudson Central School DistriDesktop\DOE_Logo_small.gif" * MERGEFORMAT States Department of EducationOffice of Special Education And Rehabilitative ServicesSeptember 3, 2013W. Kelly DudeAnderson, Dude & Lebel, P.C.Attorneys at LawPlaza of the Rockies North111 South Tejon, Suite 400Colorado Springs, Colorado 80902Dear Mr. Dude:This is in response to your letter to the Office of Special Education Programs (OSEP), written on behalf of several school districts in the Pike's Peak region of Colorado, requesting clarification regarding the secondary transition requirements in Part B of the Individuals with Disabilities Education Act (IDEA or Part B). In general, your questions relate to whether services at postsecondary institutions can be provided as part of a student's transition services identified in the student's individualized education program (IEP) under 34 CFR 300.320(b). I apologize for the delay in responding.Ensuring that all students, including students with disabilities, have the skills and knowledge necessary to succeed in college and the workforce will require higher standards of educational excellence. The Department is committed to ensuring that all students have the resources and supports needed for success in college and in a competitive workforce including the opportunity to enroll in educational programs that develop necessary knowledge and skills. OSEP believes that providing a high school student with a disability the opportunity to take one or more courses at a community college or other postsecondary institution prior to high school graduation can be critical in facilitating the student's transition from secondary school to college or the workforce. This letter will address how participation in courses at a postsecondary institution can occur consistent with Part B of IDEA. If under State law, attending classes at a poYour specific questions and OSEP's responses follow.Question 1:Does the IDEA require that school districts include language in a transition plan indicating that a student shall have access to attend a junior college, college or university (hereafter collectively postsecondary) upon the student's or parents' request? In a related issue, on what basis can a school district determine that such a student cannot reasonably benefit from attending post-secondary schools? OSEP's Response: As you know, transition services must be a part of a student's IEP beginning not later than the first IEP to be in effect when the student is 16 years of age, or younger, if determined appropriate by the IEP Team. 34 CFR 300.320(b). The term transition services is defined by 34 CFR 300.43 as follows:A coordinated set of activities for a child with a disability that(1) 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 postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;(2) Is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and includes-(i) Instruction;(ii) Related services;(iii) Community experiences;(iv) The development of employment and other post-school adult living objectives; and(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.Transition services for children with disabilities may be special education, if provided as specially designed instruction, or a related service if required to assist a child with a disability to benefit from spDecisions related to the specific content of postsecondary goals and transition services are the responsibility of the IEP Team, the required members of which are identified in 34 CFR 300.321(a) and (b). The parent and the student are required IEP Team members at IEP Team meetings where transition services and postsecondary goals are discussed. The IEP Team must consider the student's needs, taking into account the student's strengths, preferences and interests. 34 CFR 300.320(b)(2) and 300.43(a)(2). The IEP Team is required by 34 CFR 300.324(a)(ii) to consider the concerns of the parent for enhancing the education of their child; however, the IEP Team is not required to include a particular transition service or services in a student's IEP based solely on a parent's or student's request. The IDEA does not specify criteria for determining whether a student would or would not reasonably benefit from specific transition services. The IEP requirements in 34 CFR 300.320(b) for appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills should inform the IEP Team's decisions regarding transition services (including courses of study) needed to assist the child in reaching those goals. If the IEP Team determines that services in a community, technical, or other postsecondary program are necessary to assist the secondary school student in reaching his/her postsecondary goals and receiving FAPE, and those services are considered secondary school education as discussed above, the student's IEP Team could designate those as transition services and the school district could pay for those services with IDEA Part B funds. If attendance at postsecondary classes cannot be supported with IDEA Part B funds, as noted above, a State may elect to us Musgrove, Ed.D.DirectorOffice of Special Education Programscc: State Director of Special Education There are, however, exceptions to FAPE for certain ages in 34 CFR 300.102. Students with disabilities who have graduated from high school with a regular high school diploma are not entitled to FAPE. The IEP Team for a student who has not graduated from high school with a regular high school diploma has the full range of options available to provide FAPE, including providing appropriate transition services to facilitate the child's movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. 34 CFR 300.43. Under 34 CFR 300.17, FAPE means special education and related services that(a) are provide at public expense, under public supervision and direction, and without charge; (b) meet the standards of the SEA, including the requirements of this part; (c) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (d) are provided in conformity with an individualized education program (IEP) that meets the requirements of 300.320 through 300.324. Under 34 CFR 300.36, secondary school means a nonprofit institutional day or residential school, including a public secondary charter school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12. OSEP interprets reasonably benefit to mean that the child's IEP, including transition services where appropriate, is reasonably calculated to enable the child to receive educational benefit. See Board of Education of the Hendrick Hudson Central School Distri