Adam Dayan is joined by fellow Special Education Attorney Arshi Pal as they delve into the crucial topic of early adulthood and transition planning for students with disabilities. Arshi brings a wealth of experience to the discussion, having spent 10 years working in an elementary school with children from diverse backgrounds who often lacked the support they needed to thrive both academically and emotionally. Together, Adam and Arshi emphasize the importance of parents planning early for their child’s future—looking beyond school years and preparing for the transition into adulthood. Tune in as they cover key topics such as high school diplomas, graduation, college accommodations, and adult services, all with the goal of helping students with disabilities succeed in the next chapter of their lives.
Listen here:
Spotify
Apple Podcast
YouTube
TRANSCRIPT
ANNOUNCER: This is Curious Incident, a podcast for special needs families, and your window into the world of special education. Special needs parenting can be challenging, and we want to make it easier by providing you with the resources you need to help your child. Still deep into the world of learning differently with your host, Special Education Attorney Adam Dayan.
ADAM: I am pleased to present my next guest on this podcast, Arshi Pal, on the subject of early adulthood and transition planning for students with disabilities. Arshi Pal is a New York Special Education Attorney with 7 and a half years in the field of special education law. Prior to Arshi Pal’s admission to the bar as an attorney, she worked for approximately ten years in an elementary school where she worked with children from diverse backgrounds and academic levels who lacked the services they needed to succeed educationally. This, along with her experience as an AmeriCorps team leader, has fueled her on her journey to help special needs individuals. Arshi Pal is great to have you here today.
ARSHI: Thank you for having me, my pleasure.
ADAM: Okay, so today we’re going to be talking about high school diplomas and graduation. We’re going to be talking about college accommodations and adult services. Central to these topics is the question of what can your child do independently? Say more about this.
ARSHI: I’m a strong firm believer in the fact that we should always be planning for the future. With the idea that the plan can be tweaked along the way. As a parent myself, I have a young toddler of 21 months, but based on my experience, I’m always thinking about ways to monitor his progress, strengthen his strengths, and kind of support his weaknesses and develop independence. For a parent with a student who has a disability, I think this is even more so important because we want to be careful when those students who have those built-in supports for about 18 to 21 years, they become accustomed to them. So removing those supports and built-in structure can be very detrimental. Unfortunately, we’ve seen many cases where students really start to decompensate or regress once those built-in supports are taken away. So early planning, thinking about what can your child do in the future, thinking about their cognitive strengths, their emotional regulation abilities, their communication, and work readiness is very important early on.
ADAM: Let’s focus on high school. When do high school diploma considerations come into play and what sort of advanced planning is needed here?
ARSHI: Typically, parents start thinking that high school diploma’s considerations start when the child is 14 or entering in high school, but I would say things that have happened in the past can really affect high school diploma considerations. For example, if a student is placed on alternative assessment, let’s say as early as first grade, that really changes their high school trajectory. Already putting them on alternative assessment means that they’re not going to graduate with a high school diploma.
ADAM: So let’s define what that is. What does alternative assessment mean?
ARSHI: In New York State, there’s two types of assessments. I should say standardized assessments, which means, you know, the student is going to be following the Common Core curriculum. They’ll be taking, let’s say, an elementary and middle school, the New York State exams, and then in high school, they’ll be taking the Regents’ exams. However, students with severe cognitive disabilities are eligible for alternative assessment, which means that they really won’t be taking those examinations, and they’ll have a curriculum that’s very flexible based on their individual needs, and that curriculum can be used to identify their potential strengths and weaknesses. In New York City, typically, they use the Sandy assessment to try to assess students with disabilities.
ADAM: You want to talk a little bit more about the implications of this?
ARSHI: Schools or students with disabilities who are on alternate assessments will not be taking the Regents’ exams, and they will not be earning a typical high school diploma, which means that typically they will not be going to colleges, trade schools, or even the military. If you feel like an alternate assessment is not appropriate for a child, then you should really start thinking about that when they’re entering into high school or even before that.
ADAM: And talk about how a student who’s on alternate assessment gets assessed. If they’re not sitting for typical exams or Regents’ exams, for example, what is the basis of their grade or how our teachers evaluating their performance in the classroom?
ARSHI: We’ve seen in New York City that they usually use the Sandy assessment, so there’s various components to that, such as writing, reading, math. There’s also communication skills, and I believe there’s an adaptive component as well in the Sandy, where there’s certain things that the student is, if they’re able to do it, they get a point or so, and then if they’re not able to do it, they don’t get the point. And I think that with each grade level, there’s like a maximum of how many points they can get to try to show whether or not they’re making progress.
ADAM: Does alternate assessment cut off eligibility for a traditional diploma?
ARSHI: Yes, however, New York State Education Department is considering guidelines from the Blue Ribbon Commission that was created, I believe, back in 2019 to help students with disabilities or individuals who may have specific unique needs to make a more flexible approach. It’s currently not the law, but I think we’re going to have more guidance in the fall.
ADAM: Okay, so keep an eye on that. Maybe you can clarify for our listeners what types of diplomas exist, and how does one become eligible for them?
ARSHI: There are three types of diplomas. There’s a local diploma, there’s a Regents diploma, and there’s an Advanced Regents diploma. The very first criteria is that the student has to earn 22 credits under New York State, New York City, has it divided up, so it’s 44 credits. To earn the local diploma, you have to have past five Regents with 55 or higher. To have the Regents diploma, you have to pass five Regents with 65 or higher. For the Advanced Regents diploma, students have to pass nine exams with a score of 65 or higher. Something that’s really relevant here is that when we had COVID, a lot of Regents’ exams were waived, which means that on the transcript, a waived Regents’ exam under the COVID guidelines would equal of 65 or higher. Students can opt out, but sometimes they don’t know that they have that option.
ADAM: And what’s the significance of that?
ARSHI: If the student is not going to be on the diploma route, for example, they’re on alternative assessment, they will be able to work, or they should be working on the SAC credential. And it’s important to note that the SAC credential is not a diploma, and it will not allow students to attend, for example, colleges, trade schools, military service, and sometimes not have employment options as well.
ADAM: So I want to talk about that credential some more. I also wanted to talk a little bit more about the diplomas and any flexibility that’s there for students with disabilities.
ARSHI: Students with disabilities are provided with the flexible approach. So if they do pass most of the Regents, let’s say, for example, if they have like a 43 on the ELA, but they really need to have the 55, so they can potentially have a safety net, or we can have a superintendents determination to see whether or not they’re meeting the specific, I guess, credits, and then if they can receive the diploma.
ADAM: So if they were off the mark on one exam or something along those lines, there are certain exceptions sometimes that can be made in those instances.
ARSHI: That’s correct.
ADAM: So you were talking about the skills credential, which assesses the students achievements in career development, independent living skills, and academics. It’s not something that can be used to apply to college in the same way a diploma would be. Do you want to say a few more words about who that pertains to and how that credential can be used?
ARSHI: The skills credential is for students who are on alternate assessment. It’s for the school district to be able to monitor whether or not they’re making progress, whether or not they’re able to achieve various skills for independent living, some academic skills. It’s really supposed to be focusing on their abilities based on their unique needs. It’s supposed to be creating the curriculum so that the student is not just in school. They’re really focusing on some really specific areas of need.
ADAM: So they’re on alternate assessment. It’s clear that they’re not going to be earning a traditional diploma and it puts them on a track for transition planning to make sure they’re focusing on areas vocationally or in terms of living skills that will be beneficial to them after they move out of high school.
ARSHI: That’s correct. Also, a CEDAS credential where students are working on career skills, vocational skills, showing that their employment ready. So working on that kind of credential would mean that the student is taking, for example, internships or they’re working on resume building and various things like that. The thing with the CEDAS credential is that by itself it will not afford a student with the ability to apply to college similar to the SAC credential. However, if a student is working on the CEDAS along with the regions and they get the regions diploma or the local diploma, they can attend, let’s say college or military or a trade school.
ADAM: And if they’re doing that alongside the diploma and actually getting the diploma, why do they need this CEDAS?
ARSHI: The curriculum is helping them become college ready and independent living ready. It will be helpful for them.
ADAM: We’ve been saying that if they’re pursuing the certificate, it’s because they’re not eligible for the diploma. Now we’re discussing getting the CEDAS alongside the diploma and I just want listeners to understand, I mean, are they not mutually exclusive or why would a student be doing both?
ARSHI: There’s two types of credentials I want to clarify. There’s a SAC, SAC or also referred to as the skills credential. What is when a student is on alternative assessment? The CEDAS is a separate kind of certification that a student can receive. You don’t necessarily have to be a student with a disability to work on the CEDAS. The CEDAS is actually kind of an extra curriculum to help students work on employability, independent living skills and different things like that. It’s supposed to help them better prepare for the future so they can work on the regions and the CEDAS together.
ADAM: Thank you for clarifying that. I think that’s an important distinction that’s going to be really helpful to our listeners. We’ve been talking about alternate assessment as this thing that is mutually exclusive with getting a diploma and it sounds a little bit scary. If you get labeled with alternate assessment, what are the implications? What does that close you off from? Do you think parents should stay away from alternate assessment if they think college may be an option for their child?
ARSHI: Yes, absolutely. If the CSE is making that determination, I think you should challenge it as soon as possible. You should document your concerns and if the CSE is not being flexible or listening to your concerns, that might be an opportunity to file for either a mediation or an impartial hearing.
ADAM: Okay. Generally speaking, if a child has a low IQ and is struggling to meet common core expectations, should the child’s parents consider alternate assessment for their child?
ARSHI: I would say you want to try to consider all other supports possible because putting them on alternate assessment will really change their trajectory. However, if you feel like you’ve exhausted all the various resources and supports available and the student is really struggling, then perhaps alternate assessment may be the best option.
ADAM: Okay, so it’s an important decision and one that should not be made lightly.
ANNOUNCER: If you like what you are hearing, please let us know by subscribing to the Curious Incident Podcast and letting other special needs parents know about it too. If you have thoughts, questions, comments, or would like to suggest ideas for a future episode. We’d love to hear it. So email your feedback to podcast@dayanlawfirm.com.
ADAM: What should parents do if they think their child needs continued support under the Individuals with Disabilities Education Act beyond the typical high school graduation age and how long can they continue under IDEA before they transition out of that system?
ARSHI: So there’s no real typical graduation age. I’ll say for students with disabilities, they can graduate at 18 if they meet the regions or local diploma options. Typically we’re seeing students with disabilities that they have eligibility up until 21. There is, I will kind of make a note that there was a recent decision which put this in flux because the New York State Education Department says that it’s until age 22. However, a state court did say that it’s under age 21. So that’s why we’re going to use 21 and 22 because it is in flux currently. So the age out age will be either 21 or 22 depending on further guidance from New York State Education and or court decisions. However, pretty much students with disabilities can remain in school receiving a free appropriate public education until either they earn a diploma or age 21 or 22.
ADAM: So that’s one thing that’s really important for parents to know. Once they receive that diploma, it cuts off eligibility for IDEA. It terminates right then and there.
ARSHI: That is correct. I will say that if there are any concerns you want to start thinking about them, let’s say your child is working toward the regions track or the local diploma track, definitely start thinking about whether or not they’re really earning the credits required to graduate, whether or not their grades are really up to par on the regions, whether or not they really fit in for a safety net. Really look into that if you don’t feel like it’s appropriate for them to graduate at 18 or when they’ve quote unquote earned that local diploma.
ADAM: Okay. So you talked about the importance of planning and certainly prior to the students last year at the public school, if not sooner, parents should start planning as to what will come next and we’ll talk a little bit more about transition planning and when that typically starts. But what do you think are some of the questions that parents should be considering around that
ARSHI: you should start thinking about what your child’s independent functioning is like. For example, are they able to go to a grocery store and purchase a simple item? Are they able to provide the appropriate money and get the right change back or something as simple as that? Are they able to communicate their needs? Are they able to hold a conversation? Very simple skills that we do on a daily, we have to think about whether the students with disabilities are able to do those things. We want to think about what their capabilities are in terms of academics, what their independent living capabilities are as well. Prior to the student aging out, I think parents really should take advantage of the various supports available under schools, under the IDEA, such as the evaluations, the different supports available.
ADAM: And I’m just looking at my notes regarding some of the other points we discussed and certainly regarding housing. Where is the student going to live? You talked about having those living skills. There’s the question of where are they actually going to live? Will they be at home with their parents? Do they need specialized support of housing?
ARSHI: Sure. We want to think about where they’re going to be living. We want to think about what kind of program they will be attending. For example, will they go to college? Will they be in a transition program? Will they be attending a trade school? Is the military appropriate for them? We want to think about what are the healthcare needs of the student? Are they able to go to a doctor independently, take any medications they may be on? Because those are the considerations that will help in determining what the next steps are.
ADAM: Absolutely. So while we’re on the subject of transitioning to programming or employment, let’s talk a little bit about the resources that are out there and the government agencies that parents can turn to.
ARSHI: Sure. So I will say that there are various agencies. I will start with OPWDD, which is a really big one because they provide different services, housing if necessary. And what OPWDD stands for is the Office of People with Developmental Disabilities. It provides various services and supports for individuals either intellectually disabled or with autism. And pretty much supports available are com-hab support, group homes for a living, self-direction budget that can include various funding for services and programming for the individual. Another very important government benefit would be benefits to the New York State Education Department’s Adult Career and Continuing Education Vocational Rehab, which in short is AccessVR.
ADAM: Okay. Before we go into Access, let’s just clarify. I know we throw around terms among ourselves. I just want to clarify some of them for our listeners. So you mentioned com-hab support. You also mentioned self-direction. Explain what those terms mean.
ARSHI: Sure. So com-hab support will include, for example, an individual. Come to your home or come to wherever the individual is living. For example, if they’re living in a group home and they can take them out into the community. So com-hab community, habilitation, right? So they’re taking them out either on recreational activities or they’re taking them out to, let’s say, the store to teach them the skills to be able to purchase an item. So that’s something that can be done through com-hab support. Self-direction. So self-direction is a budget that you’re provided if you meet the eligibility where you get, let’s say, for example, that’s just used very simple numbers. I mean, it’s probably not a hundred dollars because what are you really getting nowadays and a hundred dollars? But let’s say you’re getting a hundred dollars in your self-direction budget. You have to indicate how those hundred dollars are going to be used for the individual. For example, let’s say that you want to get them some kind of specific services. If they want to attend some kind of camp or they want to attend some kind of recreational activity, you would have to indicate that in the budget. As we do see that with a self-direction budget, if you’re not in the typical group home scenario, you can use that funding for specialized housing or paying for an apartment for an individual with a disability.
ADAM: And it’s pretty liberal. Would you agree? In other words, there’s a lot of latitude. There’s a lot of flexibility in terms of how you can use those funds for the benefit of your child.
ARSHI: That is correct. You still have to show how you’re using that funding and potentially have those receipts to substantiate it. But it is very liberal on how those funds can be used.
ADAM: Okay. So that covers self-direction. You talked about community.
ARSHI: Habilization.
ADAM: Habilitation support. Group homes for living if necessary. We’ve talked about housing and you are about to go into a very long acronym. New York State Education Department’s Adult Career and Continuing Education Services. Vocational rehabilitation. We’re just going to call it AccessVR to cut it short. This office is known as AccessVR. Do you want to talk a little bit more about what they do and what’s available to parents?
ARSHI: Sure. So AccessVR helps individuals with preparing for employment. So some supports that AccessVR can provide is, for example, helping the individual on their resume, helping them prepare for interviews, helping them with a job coach so they can get a job coach. AccessVR can also provide supportive employment where it’s really geared toward individuals who need that extra support. If they’re making some kind of errors rather than they cut off eligibility or terminate the individual, if it’s a supported employment, then they will try to work on whatever deficit or struggle that individual is having.
ADAM: So very helpful for individuals who won’t be going off to college or further education. They’re going to be working after high school and they need some guidance and help in terms of all the areas you just mentioned. I think one of the things you mentioned is a job coach. Talk a little bit more about what a job coach does.
ARSHI: A job coach will meet with the individual depending on the schedule. Sometimes weekly, sometimes biweekly, talking about if they’re already in an employment kind of situation. What are some of the things that you enjoy about working at, let’s say, a pet store, right? What are some of the things you’re struggling with? Has your supervisor mentioned some of the areas that they want you to work on? Let’s say, for example, if the individual is coming to work late every day and the supervisor is saying you really need to focus on that, the job coach can come up with strategies to ensure or try to ensure that the individual is working on whatever the complaints or the concerns are of the supervisor.
ADAM: Amazing. You’ve talked about OPWDD. We’ve talked about AccessVR. Do you want to talk about the Office of Mental Health?
ARSHI: Sure. Office of Mental Health.
ADAM: That’s an easy one compared to the others, right?
ARSHI: Yes. On the acronym is OMH. They can provide very crucial services for individuals with significant mental health issues. For example, they can provide counseling or therapy. They can also provide housing vouchers for individuals with mental health issues.
ADAM: What kinds of issues are we talking about?
ARSHI: Depression, anxiety, sometimes eating disorders as well.
ADAM: Okay. How about Medicaid? Where does Medicaid fit into this conversation?
ARSHI: Medicaid is a really crucial support, I would say. It provides medical coverage for individuals with disabilities. It is also essential to be on Medicaid or have a Medicaid waiver if you’re trying to get OPWDD supports. Right. So, if you don’t qualify for traditional Medicaid depending on your income or your resources or your disability, then having OPWDD will be difficult. So, you really have to start planning early in terms of if you need the OPWDD supports.
ADAM: I know a lot of parents are thrown by that phrase Medicaid waiver. Can you break it down a little bit more? What is the waiver piece of it? What does Medicaid waiver mean?
ARSHI: You have to qualify for the Medicaid portion. So, you have to demonstrate the disability is there. You have to demonstrate that the income and resource levels are being met. You have to be under a specific criteria.
ADAM: Okay. There’s social security, disability, SSI. Do you want to speak more to those?
ARSHI: Sure. Social security can provide important cash benefits for individuals with disabilities. Social security income is usually cash benefit for individuals who are under a specific amount, like they’re earning less than a specific amount. Social security disability income is based really on that disability. So, SSI, you can have, even if you don’t have a disability, but SSDI, which is Social Security Disability Income, is really based on the disability and the fact that the individual is unable to have substantial gainful activity. Something also to mention is with the SSDI, you will also get Medicare, which is different from Medicaid coverage, which is a specific type of medical coverage.
ADAM: What’s unique about it?
ARSHI: So, typically Medicaid is supposed to be the payer of last resort. So, if you have Medicare, Medicare should first try to fund whatever medical coverage it is, and then Medicaid will take over after.
ADAM: It’s very liberal on what it can be used on.
ARSHI: It can be used on the individual’s day-to-day living needs. It can be used on, let’s say, if they need any kind of specialized equipment, if they need any kind of transportation, various things like that.
ADAM: Any other government agencies or resources that you think our listeners should be familiar
ARSHI: with. Sure. The New York State Commission for the Blind can provide very important resources for individuals who are visually impaired. For example, if there’s any specialized equipment required or any kind of services required, the New York State Commission for the Blind can be very helpful as well.
ADAM: Let’s get back to transition planning. Let’s focus on the interplay between the parent and the school district. We discussed that the parent is going to have a meeting or a conversation with the school district team about transition planning. How should parents approach this conversation about continued support beyond high school? Is there anything specific you would recommend in preparation for that meeting or conversation?
ARSHI: Sure. I would say that the school district has a burden at once the student turns 12 to really start doing vocational assessments or having conversations regarding the student’s interests, their capabilities, what some of the plans would be after their graduation from high school. It’s very important to have the student involved in that. It’s very important to have the parent involved in that. The parent should be able to express their concerns if there are any regarding the student’s capabilities. And then the teacher should also review records and talk about their experience with the student.
ADAM: Okay. So student, parent, teacher, anybody else who needs to be involved here?
ARSHI: We could have, for example, if there’s any school counselors involved, some schools have college guidance counselors. Those will be very important to this conversation. They should really talk about what options are available. Unfortunately, when the student is that young at 12, parents aren’t really thinking about what’s going to happen after high school because at 12, they’re probably in middle high school. Starting age 14, students should be invited to the IEP meeting so that they can really have a voice in the programming that’s going to be available to them. The various schools they’ll be working on. It is okay for a student to opt out or a parent to say that they don’t want the student there, but the student should be afforded that opportunity. At age 14 is when we’re really going to be talking about that transition planning section in the IEP, where we’re coming up with the student’s goals. We’re coming up with what services are going to be provided and what really is going to help the student for secondary or I should say after high school life.
ADAM: We both know that that IEP doesn’t always look the way it’s supposed to look talking in terms of the transition planning section. Say a little bit more. Ideally, what should the goals and services section of this part of the IEP look like?
ARSHI: As I mentioned, starting at 12, if not sooner, we should start asking the student, what are you interested in? What do you want to be when you grow up? And then also, I will throw a quick anecdote, something that helped me when I was in high school and I looked this up earlier. There’s a free website from New York State called CareerZone, which really helps a student or anyone. There’s no age limit on who can use this website. Really talk about what their preferences are. You get to click different things in terms of I like to public speak or I have a strength in communication skills. I like writing. I like to advocate for people. I’m just talking about myself because that’s what really helped me think about becoming an attorney. However, students can really play with this website and now we’re in a technical age where computers and a lot of technology is being used. I think it’s a really helpful resource to help students realize that if they’re interested in specific things, there are so many different employment opportunities out there.
ADAM: So let’s follow that. Let’s use writing as an example that speaks to the person’s interests. They’re interested in writing. They want to become an author or a journalist or what have you. Now what about the goals and services pieces of this conversation for a student who’s interested in writing? What does that transition section of the IUP need to show in terms of goals or services to help this person become a writer?
ARSHI: The goals and services could include things like helping them enhance their writing skills. If college is an option, right, we want to look up different colleges. We want to help them come up with their as college essay, write a specific type of college essay. We can put in their different services like working with the guidance counselor or working with if they have sets, working with the sets teacher on the college essay, working on the college applications, different things like that can be included in the transition section of the IEP.
ADAM: And what about for a student who’s not going on to college? Let’s say the transition planning is more vocational in nature, a writing job that the student is going to start working at after high school. Anything different that you’d want to say?
ARSHI: Sure. So maybe in that kind of a circumstance, we can have if there’s any kind of internship coordinator at that school involved in that, that can be someone listed on that portion of the IEP who will work to find a specific internship opportunity for an individual who will be, let’s say, working at such a job after they finish high school. Other things that can be done in that kind of a circumstances, working with maybe, let’s say something creative is working with the ELA teacher in school, right? Maybe that might be an option. You want to come back to this school after you finish school. You want to work with students. You want to help them with their writing skills. You can come up with that’s a really good opportunity to get creative for those students.
ADAM: Okay. And so in terms of all of these pieces and conversations that we’re talking about, are they meant to happen at the meeting in advance of the meeting? If in advance, how far in advance?
ARSHI: Once the student turns 14, transition planning should happen at every IEP meeting. We should have this discussion. Let’s say at age 14, the student is interested in being a police officer, but the next IEP meeting, they’re like, that’s not going to be an option for me, or I’m no longer interested in that. I’m now interested in being a video game developer. That’s an opportunity to reassess the students skills, also their interests, and then come up with a new plan if the old plan is not working.
ADAM: And what about in between annual IEP meetings?
ARSHI: It’s a good opportunity to have a conversation informally with the teachers to see what they’re seeing working with a student on a day to day basis. If there’s any related services providers having those conversations, it’s not only exclusive to the IEP meeting. This is something that should be in the back of our minds while the student is in high school before or after IEP meetings.
ADAM: Talk about some of the differences in transition planning in New York City versus in the suburbs.
ARSHI: The suburbs, I am finding more and more that they have really robust programs such as, you know, they’ll work with the BOCES.
ADAM: Sometimes they’ll work with what’s BOCES.
ARSHI: BOCES is a program that is geared towards students with disabilities to help with vocational training. And they do do academics as well, but it’s really for vocational training. They’ll work with either BOCES. They’ll work with sometimes I have seen where they are working with community colleges. So they’re offering courses that can count toward college credits as well. We’ve seen that. I’ve seen it with the Westchester Community College. Students in high school can work toward those credits. I am finding that the suburbs are trying to do a better job. Unfortunately, in the city, maybe due to funding or maybe due to being overwhelmed with the large population of students, I’m not finding a lot of good transition goals or transition planning meetings happening. However, it really depends on each school and what they are capable of doing. I will say that if you’re finding that you’re not having the appropriate transition planning conversations or meetings, there are private transition programs that students can be enrolled into and the parents can try to get reimbursement for those programs through an impartial hearing or settlement discussions. But I would say try to work with your school district first. Communication is key. Document any concerns. I find documenting concerns and writing is a little more effective than just having a conversation. So that’s just a helpful hint.
ADAM: So definitely try to work it out with your school district first. As you mentioned in the event that it’s not working out, there are private options to explore. Are there any examples of private options that come to mind?
ARSHI: There’s one that recently we worked with a family that we’re interested in Winston transitions. I believe it’s located in the city. So there are options like that. You can hire an executive functioning coach. They can help with the students’ executive functioning needs, helping them work on various skills such as if they need to really start initiating tasks, different things like that.
ADAM: Okay. And if it does come to that and parents are pursuing a private option, do you want to talk briefly about how that funding piece works? You mentioned going to an impartial hearing. What needs to happen for parents to secure funding for that type of program? If they determine it’s not possible to get appropriate transition planning or transition support from their school district.
ARSHI: Any kind of reimbursement, I would say, if whether it be tuition reimbursement or reimbursement for transitioning, prong one is that the school district failed to provide a free appropriate public education to the student. And if we’re focusing specifically on the transition piece, we have to show that the purposes of the IDEA, the Individuals with Disabilities Education Act, is to prepare a student with a disability for independent living beyond public school education. So we can really focus on that aspect, that the school district failed to provide a fake, the free appropriate public education.
ADAM: And that’s a piece that gets lost so often. The purpose of IDEA or IDEA is to set them up for independent living and gainful employment and being an active member of society to the extent possible and sometimes gets lost.
ARSHI: That is 100%. We’ve had recent cases, unfortunately, where school districts representatives are bringing up the fact that, well, you know, that they’re able to do certain things in school. It doesn’t matter if they can’t do it at home. But our arguments as the parent representative or parent advocates is that, well, the whole purposes of the IDEA is to generalize these skills and to be able to prepare the individual for functioning outside of the school. Absolutely. So that’s, I guess, part of prong one, which is showing that the school district failed and in its obligation. Prong two is really showing that this transition piece is crucial to the student and it’s very appropriate based on the student’s unique needs. I mean, what you could do is you can talk a little bit about what the school or the program is offering. You can have individuals talk about how it’s helping the student or how it can help the student. And then prong three, I would say, is that the equities have to favor this kind of reimbursement, right? So what does that include? The fact that the parent tried to cooperate with the school district. The parent was open to the school district’s considerations. They tried different programs that were available. They really voiced their concerns. But cooperating with the school district is very important.
ANNOUNCER: If you like what you are hearing, please let us know by subscribing to the Curious Incident Podcast and letting other special needs parents know about it too. If you have thoughts, questions, comments, or would like to suggest ideas for a future episode, we’d love to hear it. So email your feedback to podcast@dayanlawfirm.com.
ADAM: So it’s just the reality that school districts and parents are going to have different viewpoints on a child’s progress sometimes. And a school district’s view may be the student is passing and earning credits. And the parent’s view may be the child is not making meaningful progress and is not ready to graduate. So how can parents go about this? How can they challenge the transcript? How can they challenge the school district’s position?
ARSHI: So I will say it’s typically not easy. School districts have an obligation. It’s a bare minimum. And as parents, we want the best for our child, but we want to make sure that under the IDEA, the school district does not have the obligation to maximize a student’s potential. They have to just make sure that they’re making meaningful gains in their education. So that’s really, you know, the crux of the disagreement, I would say. What we can do is potentially, depending on when, right, when is this graduation happening? If we’re in the situation where we can either have that conversation, if the student is only 18 and the school district is saying they’re ready for graduation, we can have that conversation that listen, I don’t think Johnny is ready to graduate. He hasn’t made meaningful progress in his, let’s say, ELA skills or ELA regions if they’re working on the regions and he needs to be able to have more schooling to complete that. If it’s a student who’s on alternate assessment, they’re typically allowed, as I mentioned before, to remain in school until 21 or 22. And that’s where, you know, the eligibility cuts off. However, if we’re at that kind of a situation at when they’re aging out, we can potentially try to file for an impartial hearing to get compensatory education based on the past denial of FAPE.
ADAM: So talk about the timing of that, right? Because we discussed earlier that once that diploma is issued or once the child turns 21 or 22, eligibility cuts off. It’s over. It’s done. So talk about the timing of challenging the school district on this.
ARSHI: So if it’s a graduation based on a diploma, I would say you want to do this challenge, of course, way before graduation, I would challenge it, of course, in an email or in a letter. But if nothing is happening, then you would file for an impartial hearing. And at that point, you can invoke stay put or what’s known as PENDency. So the student has to continue to remain in his then current placement, receiving the supports and services that were available to him based on the last agreed upon IEP.
ADAM: So this is really important. Parents, if you file a complaint before graduation happens before that diploma is issued, you hit pause essentially. And the school district has to keep your child in that program from the day you file your complaint until that impartial hearing is completed.
ARSHI: That is correct.
ADAM: Okay. So let’s assume the parents pull the trigger before graduation before that diploma is issued and they get their impartial hearing. And now we’re at the hearing and we’re looking at the transcripts and the grades and the teacher feedback and the school’s painting one picture, the parents are seeing a different picture. What can the parents do?
ARSHI: This might be a good opportunity to have an independent evaluation done. This can also be another opportunity to have other experts or people working with the student come in. If you if the student was receiving, let’s say, for example, tutoring or something like that or another kind of provider working with them outside of school, have them come in and talk about the student’s needs. I will say that it’s not easy to try to get this kind of, let’s say, if you’re trying to get compensatory education or you’re trying to keep the student in their, let’s say, high school, it’s not easy, but there are arguments that can be made. We have seen it happen in the past, but don’t expect the school districts to just say, okay, we’re going to give this to you. You’re going to have to advocate for your child.
ADAM: Okay. So, if you’re a independent expert to talk about the child’s abilities, check compensatory education. We’ll talk more about that in a minute, what that means. What about the transcripts, grades, credits? Are those black and white? In other words, if this school assigned a certain grade or issued a credit, that’s what it is? Or is there a gray area?
ARSHI: It’s not black and white. There is a gray area. And I would think that’s a great opportunity to really delve into the student’s transcript. So let’s say, for example, if we know that Johnny had ELA every morning, let’s say at nine o’clock in the morning, but because of his school refusal or his school anxiety, he’s arriving at like 945 or he’s not even going to ELA. He’s going to his next class, which is math, but somehow miraculously he received a credit in ELA. That’s something that we can talk about. How is he possibly earning that credit if he’s not even attending the class? If we have the student’s portfolio regarding their class work, we can show, let’s say, Johnny is unable to write a three sentence essay. But meanwhile, he’s in ELA in 11th grade getting his credit. How is that possible? What’s the discrepancy there? We can attack the transcript based on that. I gave you that example of where we had a student who wasn’t meeting his PE credit, his physical education credit. That’s also an important part of the high school credits required to graduate. We can talk about that. We can talk about whether or not they actually passed the Regents exams, what their scores were. Did they qualify for the safety net? And we had a case. Unfortunately, there was a student who was in a private school. She turned 18 years old and just out of the blue, the private school gave her a quote unquote diploma. She suggested to see what that diploma looked like and it had the private school’s name on it and it had the student’s name on it and it said, high school diploma. So there was no real indication is it a local diploma? Is it a Regents diploma? Is it an advanced Regents diploma? And like I said, we looked at her transcript to see all of the different areas where she wasn’t meeting the graduation requirements and we were able to keep her in her program.
ADAM: Okay. So I think we’re using graduation and high school diploma interchangeably. Is it possible that they happen at different times or is the diploma always issued on the day of graduation? I’m just thinking in terms of by when the parents have to pull that trigger.
ARSHI: I would say definitely you should try to do it as sooner rather than later. Walking in graduation, I would say at least before then, if you can do it way before then, that’s even better.
ADAM: So let’s talk a little bit about the remedies that are available in these cases. I know you mentioned compensatory education as one example. Talk a little bit more about the remedies and explain what compensatory education means.
ARSHI: Depending on the situation, either, you know, another year of schooling or let’s say if you’re filing when the student is 18, they’re technically eligible until 21 or 22. So either they stay in school until that age, depending on the circumstances of the case or until they let’s say if we’re challenging a specific Regents or a credit until they earn that Regents or credit. However, if we’re talking about a student who’s already at age 21 or 22 and they aged out regardless of the Regents or any credential, then at that point is where compensatory education will really come in where we can try to get them some kind of let’s say compensatory tutoring or compensatory related services to make up for the denial of faith. What that includes is we have to show that the school district failed to provide the appropriate support and services for the student and they did fail to make meaningful progress. I will say that there is a two-year statute of limitations to be aware of from the date of when the parent knew or should have known regarding the denial of faith. They have to file that impartial hearing. But other than that, like I said, I always try to advocate as soon as possible because there’s more options the sooner you start, I would say.
ADAM: Arshir, are there any other transition planning basics that parents should be aware of so their children with special needs can be ready to move on to the next stage after high school?
ARSHI: I would say early assessment. I would say in as soon as elementary, I would start thinking about how is my child doing in this particular type of school? What are their cognitive abilities? What are their social emotional functioning capabilities? As early as elementary, I want to see, are they put in a particular interest, for example, they really want to be a teacher or they want to be a nurse or they love animals? I would also say that just informally in elementary, we start getting more formal with those assessments at age 12 where there’s vocational assessments happening, talking about the student’s preferences, interest and capabilities. And then at age 14 is where the IEP is really being done to talk about what’s going to happen after high school. And then while they’re in high school, I really want the parents to start thinking about what are they going to be doing after they finish high school? Are they going to be in a college program? There are very supportive colleges out there too, not the typical colleges. And sometimes you can even get college accommodations. For example, the student can indicate that they have a disability and they require, for example, testing accommodations. That’s something to be mindful of as well, just because they’re struggling in school now and they need these supports and services, they may be available to them in college too under section 504.
ADAM: What guardianship considerations should parents be thinking about if their children will continue needing help making decisions once they turn 18 and become a majority age?
ARSHI: In New York State, when an individual turns 18 years of age, they are considered an adult, regardless of disability. So that means they can enter into financial contracts on their behalf. They can make any kind of health care decisions on their behalf. And at that point, unfortunately, parents will start receiving pushback from various agencies and professionals when they’re trying to advocate or get involved for their child. At that point, I would say that if guardianship is appropriate, which means that it’s really clear that the student or the individual cannot make these decisions on their behalf, the parents can go to court to obtain guardianship of the person and or property. So what that means is guardianship of the person, that the person who is appointed as guardian, will be in charge of the individual’s health care needs and day to day needs. They will be in charge of where’s the person going to live? What are the different programs they may be put into and different things like that? If we’re doing guardianship of the property, that will be the guardian or the individual who will be taking care of the financial transactions of the individual with a disability. I will note that recently there has been a shift in the perspective of guardianships. A lot of people are noticing or have the feeling that a guardianship is very restrictive and it really impedes upon the individual’s autonomy. And there is a thought process that anyone when making a major life decision has consulted or will consult with either a trusted family member or a friend or even, let’s say, a professional before making such a decision. So the same should be true for individuals with disabilities. What is the basic principle for supportive decision making? Now courts, for example, Westchester, surrogates court is requiring families to consider supportive decision making before even getting into that guardianship realm or having that guardianship hearing. What I will say about supportive decision making is that there are alternatives to guardianship rights. So, for example, you can have the individual assuming they have capacity, sign a power of attorney, a healthcare proxy, a HIPAA form and a FERPA release. And I’ll explain what each one is.
ADAM: And some of these are known as advanced directives.
ARSHI: That is correct. Yes, these are advanced directives. In a power of attorney, the person signing is known as the principal, right? So let’s say the individual with a disability is the principal. They can appoint for themselves agents who can make financial transactions on their behalf. Typically, if it’s an individual age 18, they will appoint their parents and or siblings as backups. And those people can do financial transactions such as paying their phone bills or paying if college is, you know, an option paying for college and things like that. That’s the basic of a power of attorney. A healthcare proxy is where the individual will indicate who they want to be their healthcare agent. And that person will make healthcare decisions on their behalf. So we like to have the HIPAA release so the healthcare agent and or power of attorney can have access to the protected healthcare information to make more informed decisions regarding that individual.
ADAM: Is that necessary in addition to the healthcare proxy?
ARSHI: Yes, it can be very difficult to make informed decisions if you don’t have access to the specific healthcare records of the individual.
ADAM: So being the proxy alone, having that document doesn’t by itself get you access to that HIPAA protected medical information.
ARSHI: That’s correct. Another document I also mentioned is a FERPA release. So that is typically educational records have to be kept confidential. So having a FERPA release will allow whoever the agent in that particular document is to have access to education records to be able to advocate on behalf of the individual who has signed that release. That typically comes into play when college is a consideration. Sometimes it does come into play when an individual is in school beyond 18. Sometimes school districts will say, well, they’re technically an adult now. So having that FERPA release is very helpful as well.
ADAM: Thank you, Arshi. This has been a wonderful conversation. I’m so glad you were here. It’s been a pleasure collaborating with you over the years. And I look forward to more collaborations in the future.
ARSHI: Of course, my pleasure.
ANNOUNCER: Thanks for listening to Curious Incident, a podcast for special needs family. Don’t forget to subscribe for a new episode every month. For more resources and helpful information, check out our website and blog at dayanlawfirm.com. This podcast provides general information which is not intended to and does not constitute legal advice. You should not rely on this information for any purpose. For legal counsel, you should consult with an attorney to discuss your specific circumstances. You’re listening to this podcast does not create an attorney-quiet relationship between you and the law offices of Adam Dayan, PLLC. The old attorney-client relationship is established unless a retainer agreement has been executed between the clients from the law offices of Adam Dion. This podcast may constitute attorney advertising. Prior results do not guarantee a similar outcome. Any guest featured or resources mentioned on this podcast are for information purposes and are not endorsed by the law offices of Adam Dayan PLLC.