advocate newsletter

[Guest guest]

The Advocate

Planning for the Educational and Lifetime Needs

of Individuals with Disabilities

The Law Offices of G. Emerson Dickman

25 E. Spring Valley Avenue

Maywood, NJ 07607

201-909-0404

www.dickmanalliance.com

TRANSITION PLANNING

Many important transitions occur throughout our lives: pre-school to

kindergarten, middle school to high school, child to teen, and perhaps most

critically for individuals with disabilities: school to adulthood. Parents,

schools, advocates, and individuals with disabilities are faced with

questions about future goals (e.g. post-secondary education, employment,

independent living, community participation), the availability of services

(e.g. IEP, DDD, DVRS, SSI, Medicaid), and what actions to take to protect

the individuals with a disabilities while promoting their ability to lead

happy, productive, independent lives to the maximum extent appropriate.

This newsletter is the first installment of a two-part series addressing

some of the issues associated with transitioning to adulthood. Today's

issue addresses graduation (the end of services under the Individuals with

Disabilities Education Improvement Act) and eligibility for the Division of

Developmental Disabilities. Our next newsletter will discuss Guardianships

and developing a Transition Plan within the IEP. Within the right hand

column you will find links to additional articles <> related to transition

planning, agencies <> that may provide services, and post-secondary

programs <> for individuals with disabilities. Also note the Transition

Fair <> offered at Fairleigh Dickinson University on April 15, 2010. The

event is sponsored by The Special Education Regions of Bergen County, NJ

DVRS, Heightened Independence and Progress, Bergen Community College

Division of Continuing Education, and Fairleigh Dickinson University.

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GRADUATION: When does my child graduate? When does the district's

responsibility end?

Students with disabilities are entitled to a free and appropriate public

education through age 21 or a properly determined graduation. See N.J.A.C.

6A:14-4.1(a), 6A:14-1.1©(1). Because graduation is considered a change in

placement, the school district must notify parents before they propose to

graduate. This enables parents and their child to prepare for or challenge

graduation.

In order for a school district to properly graduate a student with

disabilities, the student must meet the district's general graduation

requirements and make progress on or complete the goals and objectives

outlined in her IEP. Before proposing graduation, the district must hold an

exit IEP meeting (also called a " Summary of Performance Meeting " ), at which

time the IEP team assesses whether the student has met the academic and

adaptive learning goals and objectives in her last IEP. See 34 C.F.R.

300.305(e)(3). The parents and student must also receive a " Summary of

Academic Achievement and Functional Performance " which is based on the

child's unique needs and goals, and includes recommendations about how the

student may meet her post-secondary goals.

Should the district recognize that the student has not made sufficient

progress on her IEP goals and objectives and is ill-equipped for

post-secondary education, employment, and independent living, the IEP team

can explore various post-secondary transition programs. However, should the

district believe the student has met the requirements for graduation,

parents may object to the graduation, unilaterally place the child at a

post-secondary transition program, and seek reimbursement from the district.

In order to do so, parents are encouraged to file for due process within 15

days from their receipt of the " Summary of Performance " IEP in order to

preserve their student's eligibility and rights under the " stay-put "

provision of the law. If you are concerned about your child's preparation

for employment, post-secondary education, or independent living, it is

recommended you contact an attorney who specializes in this area of law to

discuss your options.

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THE DIVISION OF DEVELOPMENTAL DISABILITIES: Does my child qualify?

An individual is found eligible for services from DDD after submitting an

application which establishes that the individual has a severe, chronic,

physical and/or mental impairment that:

* manifests before age 22,

* is life-long, and

* substantially limits at least three of the following life

activities: self-care, learning, mobility, communication, self-direction,

economic self-sufficiency and the ability to live independently.

Individuals with mental retardation can qualify based upon IQ score or a

combination of IQ score and additional factors. Specifically, individuals

with an IQ below 59 qualify for services. Individuals with an IQ between

60-69 qualify for services if they also have (a) an impairment in adaptive

behavior, and/or ( a chronic medical problem, and/or © an impairment in

behavioral, sensory, or motor function and the ability to perform basic

skills. N.J.A.C. 10:46-2.1(h). However, mental retardation is not required

for DDD eligibility.

While specific diagnosis are listed as examples of potentially eligible

individuals (autism, cerebral palsy, epilepsy, spina bifida) in the

implementing statutes, eligibility is not contingent upon a specific

diagnosis. N.J.S.A. 30:6D-25b. DDD is required to utilize a functional

approach to determine if an individual is eligible for services. J.D. v.

Division of Developmental Disabilities, 96 N.J.A.R. 2d (DDD) 32 (1996).

Individuals seeking eligibility should carefully review their applications

to ensure that each eligibility criteria is satisfied and documented within

the application. Of significant importance is the establishment of an

impact in three of the six identified areas for individuals who do not meet

the standard for mental retardation. These limitations can be established

through standardized measures (evaluations of daily living skills) and by

anecdotal reports of individuals familiar with applicant. T.H. v. Division

of Developmental Disabilities, 916 A.2d 1025 (N.J. 2007).

Our office assists individuals with the initial application for DDD,

especially if there is a question about eligibility We have also

successfully represented individuals who were initially denied eligibility

for DDD through reapplication and the appeal process. If you are uncertain

about your child's eligibility for DDD, are concerned about your child's

application for DDD, or you want assistance with the application process,

please contact Kim Ventresco <mailto:kim@...> to set up an

appointment to discuss the services that our office offers.