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Special Educationin the Modern Age

Exiting Students from Special Education

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What’s On the Agenda . . . Exiting from Special Education

Based on Decision that StudentNo Longer Meets Eligibility Criteria

Exiting from Special EducationThrough Automatic Termination of Eligibility

Exit from Special Education By Parental Revocation of Consent

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I. Exiting from Special Education

Based on Decision that StudentNo Longer Meets Eligibility

Criteria

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Procedural Requirements – Assessment Before student may be found to be no longer

eligible for special education, district must reassess in all areas of suspected disability, not merely in disability for which he or she was initially determined to be eligible

Same basic requirements for initial assessments apply to reassessments

(34 C.F.R. §300.303; Ed. Code, §§56026, 56381)

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Procedural Requirements – Assessment Assessment process is:

Collection of information Variety of sources

Compilation of that informationAnalysis of that informationConclusions based on that analysis

Eligibility, strengths, academic and functional levels, needs

Documented into IEP

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Procedural Requirements – Assessment Conducting the assessment

Use a variety of assessment tools and strategies Gather relevant functional and developmental

information Include information provided by the parent Include information related to enabling the student to

be involved in and progress in the general curriculum To determine:

Whether the student continues to qualify as a student with a disability; and, if so,

The content of, or revisions to, the student’s IEP (34 C.F.R.§§300.303-300.306; Ed. Code, §§56320, 56381)

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Procedural Requirements – Assessment Components of every assessment report:

Whether the student may need special education and related services

The basis for making the determination The relevant behavior noted during

the observation of the student in an appropriate setting

The relationship of that behavior to the student’s academic and social functioning

The educationally relevant health and development, and medical findings, if any

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Procedural Requirements – Assessment Components of every assessment report

(cont’d): For students with learning disabilities, whether there is

such a discrepancy between achievement and ability that it cannot be corrected without special education and related services

A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate

The need for specialized services, materials, and equipment for pupils with low incidence disabilities

Report must be provided to parents at IEP meeting

(Ed. Code, §§56327, 56329)

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Procedural Requirements – Assessment When making exiting decisions, continued

eligibility is key component of assessment report summary List the Criteria: Include the list of eligibility factors for

all suspected disabilities and, for each factor, state why the student does or does not meet the criterion

Need for Special Education: Remember that even if a student meets the eligibility criteria for a suspected disability, the student remains eligible only if he or she continues to need special education and related services to gain educational benefit

Include a statement of why the student does (or does not) need special education to gain educational benefit and tie this to the curriculum

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Assessment – Case ExampleStanislaus USD (OAH 2013) Facts

District’s triennial assessment concluded that 6-year-old Student was no longer eligible for special education

Student no longer displayed communication deficits she had shown three years earlier

District recommended Student be exited Parents disagreed and requested IEE Parents claimed assessment was inappropriate

because tests were not conducted in Student’s native language (Pashto)

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Assessment – Case ExampleStanislaus USD (OAH 2013) Decision

ALJ denied IEE and allowed District to exit Student Student spoke English proficiently in school Assessment adequately demonstrated Student no

longer met criteria for autism District committed procedural violation by not

analyzing Student’s continued eligibility in assessment report, deferring issue to oral discussion at IEP meeting

But no denial of FAPE (no loss of educational opportunity and school psychologist cured error by providing Parents her opinion on eligibility at IEP meeting)

(Stanislaus Unified School Dist. v. Student (OAH 2013) Case No. 2013050308, 113 LRP 52133)

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Assessment – Case ExampleBrea Olinda USD (OAH 2009) Facts

District proposed exiting 12-year-old Student eligible under OHI category (for ADHD)

Psychoeducational assessment concluded that ADHD diagnosis did not limit strength, vitality or alertness to degree that impaired ability to access curriculum

Parents claimed assessment was deficient and that District did not take into account all available information regarding Student’s ADHD (Parents’ interventions and assistance)

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Assessment – Case ExampleBrea Olinda USD (OAH 2009) Decision

ALJ found in favor of Parents, concluding that exiting decision was in error based on inappropriate assessment

Assessment report did not give sufficient weight to situations in which ADHD appeared to restrict Student’s ability to access education

District also did not assess Student in all areas of suspected disability based on its awareness of his language and social skills difficulties

However, ALJ rejected Parents’ predetermination claim

(Student v. Brea Olinda Unified School Dist. (OAH 2009) Case Nos. 2009050815 and 2009030124,53 IDELR 273)

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Assessment Practice Pointer

Faulty assessments can undermine IEP team’s decision that student no longer meets eligibility requirements

Keep the following in mind:Make sure assessments consider all available

information about student’s performanceEnsure assessments address all suspected areas

of disabilityDon’t forget to examine possible behavior and

social skills deficits (Remember: Adverse effect on educational performance is not limited to classroom)

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Procedural Requirements – IEP Team Meetings and PWN Exiting decisions are made by IEP team at

properly convened meeting Proper notice, which must include purpose of

meeting (e.g., whether student continues to meet eligibility requirements)

Properly constituted IEP team with all necessary members, including individual(s) who can explain and interpret results of assessments

(34 C.F.R.§§300.321, 300.322; Ed. Code, §§56341, 56341.5)

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Predetermination Predetermination occurs when districts

decide on IEP content/issues prior to IEP meeting precluding meaningful parental participation Example: Members of IEP team decide that

student no longer meets eligibility criteria in advance of meeting without parental input

Allegations of predetermination frequently arise with respect to: Preparatory meetings (Lack of) meaningful discussion at IEP meeting

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Prior Written Notice (“PWN”) Because exiting student from special

education is change of placement, proposal to exit requires providing parents PWN

Notice must contain: Description of action proposed Explanation for action Description of assessment procedures used as basis for

action Statement that parents are entitled to procedural

safeguards Sources of assistance for parents to contact Descriptions of other options considered by IEP team Descriptions of factors relevant to proposed action

(34 C.F.R.§300.503(b); Ed. Code,§56500.4)

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Prior Written Notice (“PWN”) PWN must be provided in native language of

parent unless clearly not feasible to do so Verbal notice may not serve as substitute for

PWN, even if it is substantively compliant with legal content requirements

Failure to provide PWN is procedural violation of IDEA

(Union School Dist. v. Smith (9th Cir.) 20 IDELR 987; Marcus I. v. Department of Educ., State of Hawaii (9th Cir. 2014) 114 LRP 32495, unpublished)

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IEP Meetings and PWN – Case ExampleFolsom Cordova USD (OAH 2014) Facts

District proposed to exit Student from special education based on IEP team discussion

Parents disputed decision, claiming recommendation was predetermined

Based on earlier notice of meeting with “check” in box showing that purpose of meeting was to terminate Student from special ed

Parents also claimed District failed to give them PWN prior to meeting

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IEP Meetings and PWN – Case ExampleFolsom Cordova USD (OAH 2014) Decision

ALJ found no predetermination Evidence supported explanation that original

notice was mistake and that there was no advance knowledge that Student would be exited

Assessments supporting exiting decision were not yet completed at time of notice

No evidence that team arrived at exiting recommendation until IEP meeting, so it could not have given Parents PWN in advance

(Student v. Folsom Cordova Unified School Dist. (OAH 2014) Case Nos. 2013040098 and 2013090197, 64 IDELR 190)

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IEP Meetings and PWN – Case ExampleSalinas Union HSD (OAH 2014) Facts

District’s assessments indicated 14-year-old Student with SLD no longer needed special education

District proposed exiting Student at IEP meeting Parent objected and asked for IEEs, which

District subsequently provided IEEs also indicated Student no longer met SLD

criteria District convened another IEP meeting, but

Parent halted meeting and asked that it be reconvened

District could not convince Parent to attend subsequently rescheduled meeting

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IEP Meetings and PWN – Case ExampleSalinas Union HSD (OAH 2014) Decision

ALJ supported District decision to hold rescheduled meeting in Parent’s absence

Only matter left to complete was to mark forms on IEP document that showed Student did not meet eligibility criteria

Previous meeting had established ineligibility Reasonable to hold meeting after good faith

effort to secure Parent’s attendance in order to formally finalize eligibility issue before Student started high school

(Salinas Unified School Dist. v. Student (OAH 2014) Case No. 2013070582, 63 IDELR 176)

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IEP Meetings Practice Pointer

To ensure legally compliant IEP meetings when exiting is being discussed, keep the following in mind:

Ensure all essential team members are present, including assessment personnel

Be careful of statements suggesting “here is what we have decided”

Make sure enough time is allocated for Parents’ questions about effect of exiting Student

List and respond to Parents’ concerns, but data should drive team’s ultimate decision

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Substantive Determinations – Eligibility Overview Two-part eligibility test:

Student must meet definition of one or more of 13 disabilities identified in IDEA; and

Require special education and related services as result of his or her disability or disabilities

If both parts of eligibility test are not met, exiting is appropriate

Let’s look at some cases . . .

(34 C.F.R.§300.8; Ed. Code, §56026, Cal. Code Regs., tit. 5, §3030)

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Autism – Case ExampleRiverside USD (OAH 2007) Facts

Student found eligible under autism category at age 3 and placed in preschool SDC

By kindergarten, he required minimal support Aide was available but Student needed no

assistance When Student was in second grade (gifted

general education classroom), District proposed exiting him

Parents disputed decision because they continued to observe autistic-like behaviors at home

Parents believed Student engaged in socially inappropriate behaviors and had unaddressed OT needs

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Autism – Case ExampleRiverside USD (OAH 2007) Decision

ALJ upheld IEP team’s recommendation to exit Student

Student demonstrated he could succeed in general ed classroom

Witnesses testified to Student’s academic success and appropriate peer interaction

At-home behaviors might or might not be related to autism and did not manifest themselves at school

No issues that required OT, despite Student’s unusual pencil grasp

(Riverside Unified School Dist. v. Student (OAH 2007) Case No. N2007020300, 49 IDELR 83)

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ED/SLD – Case ExampleSouth Pasadena USD (OAH 2011) Facts

CDE Diagnostic Center assessed 9-year-old Student, diagnosing her with selective mutism and social phobia

District found Student eligible under ED category, later adding secondary category of SLD

Following triennial assessment, after Student had moved on to middle school, District recommended exit from special ed based on her considerable academic progress and appropriate peer interactions

Parents believed Student would fall behind if she no longer received counseling and speech/language services

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ED/SLD – Case ExampleSouth Pasadena USD (OAH 2011) Decision

ALJ upheld IEP team’s findings that Student no longer met ED or SLD criteria

Although shy, no evidence of pervasive mood of unhappiness or depression

Interacted well with peers and teachers, made friends and made good academic progress without need for support

No discrepancy between cognitive ability and academic performance

(South Pasadena Unified School Dist. v. Student (OAH 2011) Case No. 2011050857, 58 IDELR 120)

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OHI – Case ExampleBaldwin Park USD (OAH 2010) Facts

District originally found 12-year-old Student eligibleas OHI based upon review of doctor’s prescription documenting diagnosis of ADHD

Offered behavior support services and one-to-one aide

The following school year, assessment indicated Student’s processing disorders were not affecting educational performance

Team recommended exit from special ed and offered behavior support contract to be implemented by general ed teachers

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OHI – Case ExampleBaldwin Park USD (OAH 2010) Decision

ALJ confirmed exiting decision While Student’s behaviors were “slightly

heightened” due to ADHD, they generally were typical of other students his age and did not affect access to education

Behavior aide was only minimally interacting with Student, and general ed teachers were providing redirectionwhen needed

Parents’ IEE was not credible because assessor had no knowledge of in-class behaviors or academic performance

(Baldwin Park Unified School Dist. v. Student (OAH 2010) Case Nos. 2010090527 and 2010080694, 110 LRP 71934)

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SLI – Case ExamplePalo Alto USD (OAH 2015) Facts

Student’s genetic disorder (Trisomy X) resulted in misalignment of jaw, making production of certain sounds difficult

Found eligible in preschool under SLI category based on articulation disorder

The following year, Student was reassessed because she had made “great progress”

IEP team determined Student no longer had difficulty with spoken language to extent that it adversely affected her educational performance

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SLI – Case ExamplePalo Alto USD (OAH 2015) Decision

ALJ supported exiting decision, despite Parents’ IEE recommending Student continue to receive individualized speech therapy

Student’s articulation had improved so that her speech was 90 percent intelligible

She developed alternate methods for producing sounds made difficult because of her jaw misalignment

IEE “only provided generalized observations” in recommending continued therapy

(Palo Alto Unified School Dist. v. Student (OAH 2015) Case No. 2015010524, 115 LRP 10194)

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SLI/SLD – Case ExampleTustin USD (OAH 2009) Facts

Fourth-grade Student found eligible under SLI when he was 3-years-old based on speech delays

Received speech therapy and began meeting IEP goals beginning with kindergarten year

In first grade, assessment indicated eligibility as SLD

By third grade, triennial assessment no longer indicated severe discrepancy to support SLD eligibility and Student’s articulation had continued to improve

IEP team recommend exiting Student

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SLI/SLD – Case ExampleTustin USD (OAH 2009) Decision

ALJ allowed exit, despite Parents’ claim that Student continued to require special education because he had trouble pronouncing “r” sound and needed help with homework

Mild articulation deficit and auditory processing weakness did not impact education, as Student received good grades and only required general education supports

Standardized tests also supported team’s conclusion that Student no longer qualified under SLD category

(Tustin Unified School Dist. v. Student (OAH 2009) Case No. 2008120809, 109 LRP 31220)

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II. Exiting from Special Education

Through Automatic Termination of Eligibility

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Graduation: IDEA Requirements IEP Content

Specific graduation plan/criteria may be included at team’s discretion

Typically, IEP teams discuss graduation date and receipt of diploma or certificate

IEP Meeting Required to discuss graduation requirements and

completion of goals/objectives(Letter to Anonymous (OSEP 1994) 22 IDELR 456; Letter to Richards (OSEP 1990) 17 IDELR 288)

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Graduation: IDEA Requirements Evaluation

Not required prior to termination of services (if aging-out or graduating with regular high school diploma)

Summary of Performance Required for students graduating with regular

diploma Include recommendations for meeting

postsecondary goals

(34 C.F.R. §300.305(e))

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Graduation: IDEA Requirements

Graduation with regular high school diplomais a change of placement Terminates eligibility Triggers procedural

safeguards (including duty to provide PWN)

(34 C.F.R. §300.102(a)(3))

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Graduation – Case ExampleLos Angeles USD (OAH 2012) District committed procedural violation by failing

to provide PWN of intent to change Student’s placement through graduation

However, ALJ found procedural error did not result in denial of FAPE Did not impede Parents’ participation in decision-

making as they knew of District’s intent to graduate Student

No deprivation of educational benefits as Student received special education until graduation and met all diploma and IEP requirements

(Student v. Los Angeles Unified School Dist. (OAH 2012) Case No. 2011110413, 112 LRP 27364)

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Graduation with Regular Diploma Regular high school diploma

Signifies: Completion of district’s course of study Student has met district’s proficiency

standards Does not include: Alternative degree not aligned

with state academic standards, such as certificate or GED

(34 C.F.R. §300.102(a)(3); Ed. Code,§56026.1)

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Termination of Eligibility Receipt of regular high school diploma terminates

eligibility No requirement that students physically receive

diploma prior to effective exit from special education

Parents cannot withhold consent to IEP merely to extend Student’s special ed services beyond point of completion of prescribed course of study

Although readiness for graduation does not depend on achievement of all IEP goals, decision to graduate may be rescinded if student did not receive services outlined in IEP or did not complete IEP course requirements

(34 C.F.R.§300.102(a); Ed. Code,§50621.1; Student v. Oakland Unified School Dist. (OAH 2012) Case No. 2012040848); Student v. Livermore Valley Joint Unified School Dist. (SEHO 2000) 33 IDELR 288)

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Graduation – Case ExampleNewport Mesa USD (OAH 2010) Parent claimed decision to award diploma was a

denial of FAPE because Student’s academic levels were not up to 12th-grade proficiency

Claimed he was achieving at fourth- to sixth-grade level

ALJ: Allowed graduation Student completed all educational requirements

and achieved necessary credits Teachers confirmed he earned each of his grades 12th-grade proficiency is not required by law (Student v. Newport-Mesa Unified School Dist. (OAH 2010) Case No. 2010060770, 110 LRP 73203)

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Graduation – Case ExampleLos Angeles USD (OAH 2013) Parents disputed IEP team’s decision to graduate

Student with regular education diploma ALJ rescinded diploma and found denial of FAPE Student did not meet prescribed course of study

calledfor in IEP (unmodified curriculum) Teachers testified they routinely simplified and

altered curriculum for Student, who still did not understand it

No evidence that grades were earned in unmodified manner

ALJ ordered IEP team to reconvene and develop FAPE offer

(Student v. Los Angeles Unified School Dist. (OAH 2013) Case No. 2013050272, 62 IDELR 68)

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Graduation and FAPE

Post-graduation remedies for denial of FAPE Available even after eligibility terminates by

graduation Usually in form of compensatory services to assist

Student in furthering education, obtaining employment and/or living independently

Graduation is not per se indication that Student has received FAPE

(Letter to Riffel (OSEP 2000) 34 IDELR 292)

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Certificate of Achievement If Student does not meet requirements for diploma,

District may award certificate of educational achievement if Student: Completed prescribed approved alternative courses of

study; or Satisfactorily met all IEP goals/objectives; or Satisfactorily attended high school, participated in

instruction per IEP and met objective of transition services

Graduation with certificate of achievement does not terminate FAPE eligibility and does not serve to exit student from special education

(Ed. Code, §56390)

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Graduation

Practice Pointer To avoid potential disputes about graduation

decisions, ensure that:Parents are aware early on of graduation

requirements and diploma optionsParents understand that graduation with regular

diploma automatically terminates eligibility IEP team’s decision concerning diploma track is

based on multiple indicators of student’s learning and skills and is supported by data and documentation

Student has met prescribed course of study in IEP

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“Aging Out” of Special Education Students who have not yet been exited from special

education through assessment or graduation with regular diploma continue to be eligible for services until age 22 Students turning 22 during January through June may

continue participation through end of fiscal year Students turning 22 during July, August or September are

not allowed to begin new fiscal year in district’s program Students turning 22 during October, November or

December will be exited on December 31, unless IEP (not merely IEP goals) would not be completed by that time

Example: Student who is in special year-long program at community college may not be exited until end of following fiscal year

(Ed. Code, §56026, subd. (c)(4))

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III. Exiting from Special Education

By Parental Revocation of Consent

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Parental Revocation of Consent IDEA regulations were amended in 2008 to allow

parents to revoke consent to their child’s receipt of special education and related services

Revocation serves to exit student from special ed Requirements and effect:

Must be made by party who meets legal definition of “parent”

Must be in writing Does not negate any action that occurred between time of

original consent and receipt of revocation Only takes one parent to revoke consent, even if

other parent disagrees(34 C.F.R.§§300.9(c), 300.300(b)(4); Letter to Ward (OSEP 2010) 56 IDELR 237; Letter to Cox (OSEP 2009) 54 IDELR 60)

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Parental Revocation of Consent District obligations upon receipt

of written revocation of consent May not continue to provide special education

and related services May not use mediation or due process

procedures in order to obtain ruling for continuation of services

Will not be considered to be in violation of FAPE requirement based on failure to provide further services

Is not required to convene IEP meeting or to develop IEP

(34 C.F.R.§300.300(b)(4))

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Parental Revocation of Consent Districts may not terminate services

immediately upon receipt of revocationof consent Must first provide PWN that explains

changes in student’s educational program that will result from revocation

Provision of PWN gives parents necessary information and time to consider all ramifications of revocation

(34 C.F.R.§300.300(b)(4); 73 Fed. Reg. 73008 (Dec. 1, 2008))

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Parental Revocation of Consent Specific issues implicated by revocation:

Accommodations: Teacher may provide accommodations available to nondisabled students, but no longer required to provide those identified in IEP

Child find: Some decisions indicate child find is not implicated unless evidence that student has different needs than those previously addressed in IEP for which consent was revoked

Discipline: Student may be disciplined as general education student and is not entitled to IDEA protections

(IDEA Part B Supplemental Regulations, Non-Regulatory Guidance (OSEP 2009); Houston Indep. School Dist. (SEA TX 2014) 114 LRP 44750; Questions and Answers on Disciplinary Procedures (OSERS 2009) 52 IDELR 231)

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Parental Revocation of Consent Specific issues implicated by revocation

(cont’d): Education records: District is not required to

amend records to remove reference to student’s previous receipt of special education

Placement: District may place student in any classroom where it places other general education students

Subsequent evaluation requests: If parent subsequently asks that student be re-enrolled in special education, district must treat request as request for initial evaluation

(IDEA Part B Supplemental Regulations, Non-Regulatory Guidance (OSEP 2009); Letter to Cox (OSEP 2009) 54 IDELR 60)

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Revocation of Consent

Practice Pointer Take the following actions upon receiving a

parental revocation of consent:Provide PWN “promptly” upon receiptDiscontinue services a “reasonable” time after

providing PWN Detail consequences of revocation in PWN,

specifically that: Student will no longer receive special education of

any kind Student will no longer have IDEA disciplinary

protections

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Take Aways . . . Exiting decisions require:

Appropriate assessments Procedural compliance Knowledge of eligibility standards

Collaboration with parents is essential throughout exitingdecision-making process

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