DEPT. OF EDUCATION ISSUES NEW REGS FOR POST-SECONDARY PROGRAMS FOR STUDENTS WITH INTELLECTUAL DISABILITIES
-- Enables Students to Qualify for Federal Student Financial Aid Under Modified Standards
-- Imposes Specific Requirements for Intellectual Disability
-- Important for High School Students to Meet Specific Requirements and Obtain Documentation
-- Students with Autism, TBI, etc. May Qualify if They Otherwise Meet Standards for Intellectual Disability
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Dept. of Education Issues New Regs for Post-Secondary Programs For Students with Intellectual Disabilities
On October 29, 2009, the Department of Education issued rules for post-secondary education programs and federal financial aid that were published in the Federal Register at
http://edocket.access.gpo.gov/2009/pdf/E9-25373.pdf (PDF) and
http://edocket.access.gpo.gov/2009/E9-25373.htm (text). The regulations affect the ability of students with "intellectual disabilities" to receive federal financial aid if they enroll in comprehensive transition and postsecondary education programs. Intellectual Disability can include students with autism and traumatic brain injury under certain circumstances.
The regulations are of importance to high school students with intellectual disabilities who are nearing transition, since the failure to meet the regulations' requirements may prevent such students from obtaining federal student financial aid. Parents and attorneys/advocates should be aware of these requirements for all transitioning students, even those not immediately expected to enroll in post-secondary programs, as many people, regardless of disability, choose to return to education later in life. (I use the term "mental retardation" in this article only because the regulations use it to determine qualification for "intellectual disability.")
The Federal Register notice contains both the regulations (which are codified at 34 C.F.R. §§ 668.231-233) and the non-binding Department of Education commentary guidance. Regulations have gone through a notice and comment period and are legally binding unless contrary to law; commentary represents the views of the Department of Education but courts and colleges/schools do give it weight.
A comprehensive transition and postsecondary education program is a degree or nondegree program designed to support students with intellectual disabilities in academic, career, technical, and independent living instruction at an institution of higher education. Both the Higher Education Act and regulations take special care to specify that students with intellectual disabilities must be integrated with non-disabled students in classes, thus continuing the Least Restrictive Environment policies of the IDEA. 20 U.S.C. § 1140, 34 C.F.R. § 668.231.
Specific Legal Meaning of "Intellectual Disability." Of greatest significance, "intellectual disability" has a particular unique meaning under the Higher Education Act and 34 C.F.R. § 668.231. The following are required for the student to qualify.
(1) The student must have "mental retardation" or a cognitive impairment characterized by "significant limitations" in intellectual and cognitive functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The commentary provides that under certain circumstances, autism and traumatic brain injury can be considered intellectual disabilities.
(2) He/she must have been found eligible for special education under the IDEA by the Local Education Agency (school district), and this must be reflected in the LEA's records, 34 C.F.R. §§ 668.231, 668.233.
(3) The LEA's records must identify him/her as having an intellectual disability or mental retardation, or other specified forms of documentation must do so. 34 C.F.R. § 668.233.
Potential Issues that May Arise Under Regulations. Some specific issues arise under the regulations. - If the LEA's records do not identify the child as having an intellectual disability or mental retardation, the regulation lists other documentation that may establish the intellectual disability. These can include a comprehensive evaluation and diagnosis of intellectual disability by a psychologist or other professional; or a record documenting an intellectual disability from an LEA, State Education Agency (SEA), or another government agency, such as the Social Security Administration or a vocational rehabilitation agency. The decision about whether a student meets the definition of intellectual disability is made by the post-secondary institution. There is a great deal of focus on the Regulation Commentary on this issue, so it should not be brushed off if parents/advocates are unsure about the high school student's documentation.
If a high school student is not likely to have the listed documentation and the intellectual disability (or mental retardation) has not been previously noted in the child's LEA records, parents and attorneys/advocates should give consideration to including the designation "intellectual disability" in his/her LEA records if it appropriately describes his/her intellectual functioning. One example would be a child classified with another primary disability (e.g., autism or traumatic brain injury) who otherwise meets the requirements for intellectual disability. Another example is a situation where the SEA/LEA uses a different term and the term also includes children who do not have intellectual disabilities. (Obviously, if the term is limited only to children with intellectual disabilities and incorporates the same elements as 34 C.F.R. § 668.231, there should not be a problem. But parents may wish to have proof in the form of an SEA or LEA regulation, directive, or policy showing that the term is equivalent to intellectual disability or mental retardation.) - The child must have been evaluated and found eligible for special education under the IDEA by the LEA. A private professional's opinion that the child should be eligible for special education does not count. Parents may wish to obtain such an evaluation and eligibility statement from the LEA if a child was not previously evaluated by the LEA and found eligible for special education (often because of parental placement in a private program or homeschool program and a decision not to seek IDEA services).
- The regulation requires only an LEA record, indicating that it need not be the IEP. Some parents and school personnel may naturally gravitate toward the IDEA's Summary of Academic and Functional Performance for transitioning students. But, the Department of Education, in the regulation commentary, opined that the transition summary is not sufficient alone to establish an intellectual disability, although it can be a useful supplement. (Commentary, while nonbinding, is given weight by colleges and LEAs/SEAs and courts, and can be used in later guidance by the Office of Special Education Programs (OSEP).) Thus, it is important to ensure that the intellectual disability is also documented elsewhere in the child's school records (or other qualifying records). Transition summaries are described in more detail in the IDEA regulations, 34 C.F.R. § 300.305(e)(3).
- Students can enroll in the post-secondary programs and receive student financial aid without having graduated from high school, passing an "ability to benefit" test, or being enrolled in degree-seeking programs. The regulations modify the federal student financial aid requirements in this regard.
- If parents expect an issue to develop about whether the child has an intellectual disabiltiy, and the child's evaluation was older, parents may contemplate obtaining a newer one. The commentary state that older evaluations can be used, but the entity making the decision is the post-secondary institution. For most students with intellectual disabilities, this will not be an issue of concern. But conceivably, there are a small number where the issue may be disputed.
Issues Impacting Student and Other Financial Aid. The new regulations also have a financial impact. These can include the following. - If a legal guardian has been appointed for an adult student with an intellectual disability, the student's ability to receive federal student aid may be impacted because the guardianship may affect dependency status. Hence, the guardian's income and assets may be considered in determining calculating financial need, according to the Commentary. This is particularly an issue for the older, returning student but may be an issue for others as well.
- Parents and advocates/attorneys should be aware that receipt of Medicaid and other aid can impact the student's access to student financial aid. Conversely, the commentary warns that receipt of student financial aid may impact eligibility for Medicaid and other forms of aid. This is something to look into further as appropriate.
- The Department of Education declined to exercise waiver authority to allow students with intellectual disabilities to receive Pell Grants for more than the maximum amount of time (as they may need more time in school), but will consider readdressing the issue if problems arise.
Educational Program Requirements. The regulations set a number of educational requirements. These include relaxing current requirements to receive federal student financial aid. The student must make satisfactory progress in the post-secondary program under its published standards. The student must participate at least "half time" in classes with students without disabilities, although the commentary observes that "half-time" may be flexibly defined. There is a strong emphasis on integration. The Commentary states that the remaining time should be spent in participation with non-disabled students in non-academic settings like clubs, service projects, and university life. Finally, the Department of Education declined to categorically remove children with intellectual disabilities from calculations of academic progress and job placement that colleges and universities must do.
Students Dually Enrolled in High School and the Post-Secondary Program. There are special rules for students dually enrolled in high school and a comprehensive transition and post-secondary educational program. Some include the following. States that provide dual enrollment programs for children without disabilities must provide them for children with disabilities, see IDEA, sec. 612(a)(2). Financial issues may develop. The commentary states that dually-enrolled students are not eligible for federal student financial aid, but the Deparmtent of Education will monitor to determine if it is appropriate to waive this in the future. The LEA is not normally responsible for paying for the post-secondary program. But, the LEA may use Part B funds if the post-secondary program is considered secondary school education under State law and the program is in the child's IEP, according to the commentary. Furthermore, LEAs have certain obligations to monitor academic and functional progress if the post-secondary program is considered special education and included in the child's IEP. Hence, the LEA is not relieved of its FAPE responsibilities.
Conclusion. Comprehensive transition and post-secondary education programs are an excellent way for children with intellectual disabilities to receive a post-secondary education and the benefits that this has for employment, just like anyone else. Care should be taken to ensure that high school students have their documentation in order, so that they qualify for federal student financial aid if they enroll in these programs.
For more information:
-- Federal Register Notice Containing Final Regulation and Commentary, 74 Federal Register 55902 (Oct. 29, 2009), available at
http://edocket.access.gpo.gov/2009/pdf/E9-25373.pdf and
http://edocket.access.gpo.gov/2009/E9-25373.htm
-- Higher Education Opportunity Act, Part D, Public Law 110-315, 20 U.S.C. §1140 et. seq. (Aug. 14, 2008), http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ315.110.pdf
If link is too long to work, simply type "Public Law 110-315" into your favorite search engine
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Thank you,
Jessica Butler
email for article purposes is: jessicabutler@ymail.com (that's "y" not "g")
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