1. 1
Special Education
in the Modern Age
Exiting Students from
Special Education

2. 2
What’s On the Agenda . . .
 Exiting from Special Education
Based on Decision that Student
No Longer Meets Eligibility Criteria
 Exiting from Special Education
Through Automatic Termination
of Eligibility
 Exit from Special Education
By Parental Revocation of Consent

3. 3
I. Exiting from Special Education
Based on Decision that Student
No Longer Meets Eligibility Criteria

4. 4
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)

5. 5
Procedural Requirements –
Assessment
 Assessment process is:
 Collection of information
 Variety of sources
 Compilation of that information
 Analysis of that information
 Conclusions based on that analysis
 Eligibility, strengths, academic and functional levels,
needs
 Documented into IEP

6. 6
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)

7. 7
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

8. 8
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)

9. 9
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

10. 10
Assessment – Case Example
Stanislaus 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)

11. 11
Assessment – Case Example
Stanislaus 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)

12. 12
Assessment – Case Example
Brea 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)

13. 13
Assessment – Case Example
Brea 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)

14. 14
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 performance
 Ensure assessments address all suspected areas
of disability
 Don’t forget to examine possible behavior and social skills
deficits (Remember: Adverse effect on educational
performance is not limited to classroom)

15. 15
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)

16. 16
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

17. 17
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)

18. 18
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)

19. 19
IEP Meetings and PWN – Case Example
Folsom 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

20. 20
IEP Meetings and PWN – Case Example
Folsom 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)

21. 21
IEP Meetings and PWN – Case Example
Salinas 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

22. 22
IEP Meetings and PWN – Case Example
Salinas 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)

23. 23
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

24. 24
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)

25. 25
Autism – Case Example
Riverside 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

26. 26
Autism – Case Example
Riverside 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)

27. 27
ED/SLD – Case Example
South 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

28. 28
ED/SLD – Case Example
South 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)

29. 29
OHI – Case Example
Baldwin Park USD (OAH 2010)
 Facts
 District originally found 12-year-old Student eligible
as 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

30. 30
OHI – Case Example
Baldwin 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 redirection
when 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)

31. 31
SLI – Case Example
Palo 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

32. 32
SLI – Case Example
Palo 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)

33. 33
SLI/SLD – Case Example
Tustin 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

34. 34
SLI/SLD – Case Example
Tustin 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)

35. 35
II. Exiting from Special Education
Through Automatic Termination
of Eligibility

36. 36
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)

37. 37
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))

38. 38
Graduation: IDEA Requirements
 Graduation with regular high school diploma
is a change of placement
 Terminates eligibility
 Triggers procedural
safeguards (including
duty to provide PWN)
(34 C.F.R. §300.102(a)(3))

39. 39
Graduation – Case Example
Los 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)

40. 40
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)

41. 41
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)

42. 42
Graduation – Case Example
Newport 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)

43. 43
Graduation – Case Example
Los 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 called
for 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)

44. 44
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)

45. 45
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)

46. 46
Graduation
Practice Pointer
 To avoid potential disputes about graduation decisions,
ensure that:
 Parents are aware early on of graduation requirements
and diploma options
 Parents 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

47. 47
“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))

48. 48
III. Exiting from Special Education
By Parental Revocation
of Consent

49. 49
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)

50. 50
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))

51. 51
Parental Revocation of Consent
 Districts may not terminate services
immediately upon receipt of revocation
of 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))

52. 52
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)

53. 53
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)

54. 54
Revocation of Consent
Practice Pointer
 Take the following actions upon receiving a parental
revocation of consent:
Provide PWN “promptly” upon receipt
Discontinue 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

55. 55
Take Aways . . .
 Exiting decisions require:
 Appropriate assessments
 Procedural compliance
 Knowledge of eligibility standards
 Collaboration with parents is
essential throughout exiting
decision-making process

56. 56