LEAST RESTRICTIVE ENVIRONMENT (LRE): LEGAL UPDATE · the student’s ability to grasp the essential elements of the regular education curriculum. The Court stated “we must pay close

Copyright 2013: Walsh, Anderson, Gallegos, Green & Treviño, P.C. Page 1 of 20

LEAST RESTRICTIVE ENVIRONMENT (LRE): LEGAL UPDATE

By: JENNY WELLS & ELVIN HOUSTON

www.WalshAnderson.com

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Austin, TX 78752 (512) 454-6864

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I. THE STATUTE AND REGULATIONS

A. The IDEA 2004 LRE Mandate

The IDEA requires that “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. '1412(a)(5)(A).

B. Full Continuum of Services

1. “Each public agency shall ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” 34 C.F.R.

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'300.115(a). 2. “The continuum … must … include the alternative placements listed in

the definition of special education under Sec. 300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions).” 34 C.F.R. '300.115(b)(1).

3. “The continuum … must … make provision for supplementary services

(such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. 34 C.F.R. '300.115(b)(2).

C. Making the Determination

1. “In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that … the placement decision is based on the child’s IEP.” 34 C.F.R. '300.116(b)(2).

2. “In determining the educational placement of a child with a disability,

including a preschool child with a disability, each public agency must ensure that … in selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs. 34 C.F.R. '300.116(d).


including a preschool child with a disability, each public agency must ensure that … a child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.” 34 C.F.R. '300.116(e).

4. “As used in this part, the term individualized education program or IEP

means a written statement for each child with a disability … that must include ... a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child— (i) To advance appropriately toward attaining the annual goals; (ii) To be involved in and make progress in the general curriculum

in accordance with paragraph (a)(1) of this section, and to participate in extracurricular and other nonacademic activities; and

(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section.” 34 C.F.R. '300.320(a)(4).


D. Ensuring the Right Decision and Justifying the Determination

1. “As used in this part, the term individualized education program or IEP means a written statement for each child with a disability … that must include ... an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(4) of this section.” 34 C.F.R. '300.320(a)(5).

2. “Each public agency must ensure that … to the maximum extent

appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled.” 34 C.F.R. '300.114(a)(2)(i).

3. “Each public agency must ensure that … special classes, separate

schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 34 C.F.R. '300.114(a)(2)(ii).

4. “In providing or arranging for the provision of nonacademic

and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in Sec. 300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.” 34 C.F.R. '300.553.

5. “Each public agency shall take steps to provide nonacademic

and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.” 34 C.F.R. '300.306(a).

II. THE FIFTH CIRCUIT ON LEAST RESTRICTIVE ENVIRONMENT

A. Daniel R.R. v. SBOE, 874 F.2d 1036 (5th Cir. 1989). Facts: Daniel R. was a six year old child with mental retardation and a speech impairment and he also had Down syndrome. His developmental age was between two and three years old. In 1985, his parents enrolled him in the district’s half-day special education Early Childhood Program. Before the next year began, his mother requested placement for him in a half-day regular education pre-kindergarten class so he could interact with children without disabilities. The district agreed to enroll Daniel in the half-day pre-kindergarten class as well as the half-day Early Childhood class. However, Daniel required “constant, individual attention” from the regular education teacher and aide in


order to participate in the pre-kindergarten class, and he was unable to master any of the skills taught as part of the regular curriculum. Modifying the curriculum and teaching methods to reach Daniel would have required the teacher to modify the curriculum beyond recognition. In November, the ARD committee proposed a revised IEP under which Daniel would attend only the special education class while interacting with nonhandicapped children at recess and at lunch. Daniel’s parents challenged this decision in a due process hearing, but the school district prevailed there and in federal court. The Fifth Circuit affirmed and, in doing so, it established a standard along with five factors to consider when determining LRE. Standard (Two-Part Test): 1. Ask whether education in the regular classroom, with the use of

supplemental aids and services, can be achieved satisfactorily.

2. If the answer is “no,” and the school intends to provide special education or to remove the child from regular education, ask whether the school has mainstreamed the child to the maximum extent appropriate.

Factors to consider:

1. Has the district taken steps to accommodate the child with disabilities in

regular education?

“The Act requires states to provide supplementary aids and services and to modify the regular education program when they mainstream handicapped children.” “If the state has made no effort to take such accommodating steps, our inquiry ends, for the state is in violation of the Act's express mandate to supplement and modify regular education.”

2. Were these efforts sufficient or token?

“The Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad.” “Although broad, the requirement is not limitless. States need not provide every conceivable supplementary aid or service to assist the child.” “[T]he Act does not require regular education instructors to devote all or most of their time to one handicapped child or to modify the regular education program beyond recognition.”


3. Will the child receive an educational benefit from regular education? “This inquiry necessarily will focus on the student's ability to grasp the essential elements of the regular education curriculum.” “We reiterate, however, that academic achievement is not the only purpose of mainstreaming. Integrating a handicapped child into a nonhandicapped environment may be beneficial in and of itself. Thus, our inquiry must extend beyond the educational benefits that the child may receive in regular education.”

4. What will be the child's overall educational experience in the mainstreamed environment, balancing the benefits of regular and special education? “[T]he benefit that the child receives from mainstreaming may tip the balance in favor of mainstreaming, even if the child cannot flourish academically.” “On the other hand, placing a child in regular education may be detrimental to the child.”

5. What effect does the disabled child's presence have on the regular

classroom environment?

“Where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore regular placement would not be appropriate to his or her needs.” “[T]he child may require so much of the instructor's attention that the instructor will have to ignore the other student's needs in order to tend to the handicapped child.” “The Act and its regulations mandate that the school provide supplementary aids and services in the regular education classroom. A teaching assistant or an aide may minimize the burden on the teacher. If, however, the handicapped child requires so much of the teacher or the aide's time that the rest of the class suffers, then the balance will tip in favor of placing the child in special education.”

Result – Did El Paso ISD take sufficient steps to modify the curriculum and provide supplemental aids or services? Yes. El Paso ISD mainstreamed Daniel to the maximum extent appropriate.


First, El Paso ISD took steps to modify the Pre-K program and to provide supplementary aids and services. The Pre-K teacher made genuine and creative efforts to reach Daniel, devoting a substantial-indeed, a disproportionate amount of her time to him and modify the class curriculum to meet his abilities. Daniel’s needs command most of the Pre-K teachers time and diverted her attention away from the rest of her students. The teacher would have to alter 90 to 100% of the curriculum to tailor it to Daniel’s ability. Such an effort would modify the curriculum beyond recognition, an effort the Court would not require in the name of mainstreaming.

Did Daniel receive educational benefit in Pre-K? No. This inquiry will focus on the student’s ability to grasp the essential elements of the regular education curriculum. The Court stated “we must pay close attention to the nature and severity of the child’s handicap as well as to the curriculum and goals of the regular education classroom.” The Court noted that Daniel’s handicap has slowed his development so that he is not yet ready to learn the developmental skills offered in Pre-K. Further, the Court observed that “Daniel does not participate in class activities; he cannot master most or all of the lessons taught in the class”. In summary, the Court opined, “Very simply, Pre-K offers Daniel nothing but an opportunity to associate with non-handicapped students”. The Court examined Daniel’s overall experience and noted that it has “not been entirely beneficial”. The Court held that, “When we balance the benefits of regular education against those of special education, we cannot agree that the opportunity for Daniel to interact with non-handicapped students is sufficient ground for mainstreaming him”. What effect did Daniel’s presence have on the regular class environment? The teachers devoted a disproportionate amount of time to Daniel. The Court stated, “When Daniel is in the Pre-K classroom the instructor must devote all or most of her time to Daniel. Yet she has a classroom filled with other, equally deserving students who need her attention. Although regular education instructors must devote extra attention to their handicapped students, we will not require them to do so at the expense of their entire class.”

B. R.H. v. Plano Independent School District, (C.N. 09-40369, 5th Cir. COA, 5/27/10).

Facts: R.H. began receiving early childhood intervention (ECI) services at the age of two. When he came to the attention of the Plano ISD in June 2004, he was attending a private preschool program. R.H. was determined by the ARD committee to qualify for special education services as a student with autism and a speech impairment. The ARD committee recommended a part-time placement at Beaty Early Childhood School. The class included “both special education and typically developing students.”


R.H. attended Plano ISD from January until May 2005. However, by March 2005 R.H.’s parents became concerned about possible behavioral regression and requested summer school. After the district failed to respond to the summer school request, the parents unilaterally enrolled R.H. in a private summer preschool program where he remained. After school resumed in the fall through January 2006, numerous ARD meetings were held concerning R.H. Despite multiple offers by Plano ISD, the parents continued to disagree with the IEP and placement proposed by the district, and ultimately requested a due process hearing. Among other things, the parents sought reimbursement and prospective placement at the private preschool, arguing that the private preschool constituted R.H.’s least restrictive environment because it was a fully mainstreamed environment. Result: The LRE issue on appeal was limited to the first part of the Daniel R.R. test: whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily. As the Court pointed out, the parent failed to challenge the second part of the Daniel R.R. test: whether the school has mainstreamed the child to the maximum extent appropriate. The Court held in favor of Plano ISD. Key Quotes: Regarding whether the ARD committee adequately considered the fully mainstreamed private preschool option:

R.H.’s central argument is that PISD fails Daniel R.R. step one (and thus, Michael F. factor two), because the district did not consider placing him anywhere except at Beaty. His class at Beaty, R.H. argues, is a “special education” setting, not a “regular” setting. It follows that PISD took no “steps to accommodate [him] in regular education,” as required by the IDEA. We disagree. The hearing officer found that PISD had considered placing R.H. in a fully mainstreamed environment but rejected that option. That finding was amply supported by evidence offered at the due-process hearing. Susie Vaughn, the principal at Beaty and a member of R.H.’s ARD committee, testified that the committee was aware of R.H.’s previous enrollment at TLC, but because of the needs identified in R.H.’s IEP—a low staff-to-student ratio, a special education teacher with knowledge of autism, regular collaboration with a speech pathologist—the committee could not be confident that the IEP could be implemented in a private school setting, without PISD’s direct supervision.


Regarding whether the private preschool constituted the least restrictive option because it was the only fully mainstreamed option:

PISD satisfied Daniel R.R. step one by considering whether R.H.’s IEP could be satisfactorily implemented in a regular classroom. We disagree, moreover, with R.H.’s rigid interpretation of Daniel R.R. step one, because he ignores an important factual distinction. In Daniel R.R., the district had the option of placing the child in either of two pre-existing public classrooms: a regular pre-kindergarten class or a special education early childhood class. Daniel R.R., 874 F.2d at 1039. R.H. asserts that “PISD offers no mainstream public classes for preschool children.” In such a case, he argues, PISD was required to begin with the presumption that it would place him in “[t]he only mainstream placement available,” a “‘private’ placement at a preschool for typically developing children,” and remove him from the private setting only if it could not provide a satisfactory education there.

The Fifth Circuit declares that a private school placement is not the default:

The IDEA, however, makes removal to a private school placement the exception, not the default. The statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education. Courts should therefore be cautious before holding that a school district is required to place a child outside the available range of public options.

C. J.H., v. Fort Bend Independent School District, No. 11-20718 (5th Cir. July 26, 012)

Facts: J.H. was a child with an intellectual disability and speech impairment who attended middle school at Ft. Bend ISD. His evaluations at the beginning of his 6th grade year indicated an IQ of 48, and his academic achievement scores ranged from kindergarten to second grade level. Prior to the beginning of his 6th grade year, JH’s ARD Committee convened to recommend that he receive science and social studies in a special education setting. The parent disagreed, instead seeking he be placed in regular education in these areas. The school, nonetheless, allowed J.H. to begin his 6th grade year in regular education social studies and science. As predicted, J.H. struggled in the general education classes, his teachers reported J.H. being overwhelmed by level of difficulty. Accordingly, an ARD Committee convened to again recommend that J.H. be placed in special education for science and social studies. Parents continued to disagree and retained two independent evaluators to conduct evaluations. These evaluations supported the District’s placement recommendations. Subsequently, the ARD Committee proceeded with the recommended placement of science and social studies in special education


classroom despite the parent’s objections. The parents requested a special education due process hearing and litigation ensued. Results: The 5th Circuit upheld the District’s decision to place J.H. in a special education class for both settings. The Court pointed out that the student did not receive any educational or non-educational benefits from the science and social studies general education setting. The Court noted that “Although the district accommodated the student by providing aides and modifying the curriculum, the student often refused to work due to frustration with his inability to grasp increasingly difficult concepts. Furthermore, because the student received instruction separately from tutors and teaching assistants, his ability to interact with non-disabled peers was seriously limited.” Some of the accommodations noted included, assistance by aides at all times and assignments modified up to 100 percent to adapt to his level. The Court further noted that the student’s lack of progress, evidenced by failing grades demonstrated a need for a more restrictive setting, and while he did not present as a disruptive student, such was less important than the fact that he was receiving no education benefit. The Court observed that the District, in keeping with the statute, embarked upon an “incremental approach” when recommending more restrictive settings. As difficulties in general education classes increased, the school recommended incrementally greater time be spent in special education classrooms. The Court further noted that J.H. would be mainstreamed in other general education settings such as speech, lunch, special assemblies, and kickstart. It is important to note that the 5th Circuit, in reaching its decision, relied upon the Daniel R.R. factors.

III. OTHER CIRCUITS ADOPT THE FIFTH CIRCUIT STANDARD

A. Eleventh Circuit1: Greer v. Rose City School District, 950 F.2d 688 (11th Cir.

1991); withdrawn on other grounds, 956 F.2d 1025; reinstated per curiam 967 F.2d 470, (11th Cir. 1992).

Facts: Christy is a child with Down syndrome. Her parents first tried to enroll her in her regular elementary school when she was five years old, but refused to consent to having her evaluated. After the school district insisted that she be evaluated, her parents declined to enroll her. Two years later, they again attempted to enroll her without agreeing to an evaluation. The school district requested a due process hearing, and obtained an order granting an evaluation. During the pendency of the due process hearing and evaluation, Christy was enrolled in a regular Kindergarten class on her home campus of the school district. Her evaluation revealed that she functioned in the moderately mentally handicapped range with significant deficits in language and articulation.

1 The Eleventh Circuit Court of Appeals includes the states of Alabama, Florida, and Georgia.


Following the evaluation, the IEP team met to design a program for Christy. The district proposed placement in a self-contained classroom with speech therapy at an elementary school other than her home campus. Christy’s parents requested that she remain in the regular kindergarten classroom of her home campus with the supplementation of speech therapy. The parents presented an IEE in support of regular classroom placement. After considering the IEE, the school district did not alter its proposal. The Court found it “significant that neither the transcripts and minutes of the placement committee meetings nor the proposed IEP indicate that school officials considered any options other than the two extremes presented by the parties, that is, the school district’s proposal for instruction in a self-contained class and the parents' proposal for instruction in a regular class supplemented only by speech therapy.” Due to the stay-put provision, Christy remained in regular education during the pendency of the proceedings. Additional evidence before the district court revealed that Christy was making progress in regular education even without supplementary aids and services.

Standard: The Eleventh Circuit adopts the Fifth Circuit standard in Daniel R.R.

Result: School district loses. During the IEP development, the full range of supplemental aids and services in the regular class was not discussed or considered. The full range of supplemental aids and services does not include the provision of a full-time teacher for a disabled child even if this would permit the child to be satisfactorily educated in a regular class. The consideration of supplemental aids and services should be shared with the child’s parents at the IEP meeting. The court will not consider after-the-fact justifications for a predetermined placement.

B. Third Circuit2: Oberti v. Board of Educ of Borough of Clementon Sch Dist, 995

F.2d 1204 (3rd Cir. 1993).

Facts: Rafael is an eight-year-old child with Down syndrome. After a one-year placement half-day in a regular pre-kindergarten class and half-day in a special education class on another campus, the school district recommended that Rafael be placed in a segregated self-contained classroom located in a different school district. Although Rafael made social and academic gains in his pre-kindergarten classroom, he “experienced a number of serious behavioral problems there, including repeated toileting accidents, temper tantrums, crawling and hiding under furniture, and touching, hitting and spitting on other children. On several occasions Rafael struck at and hit the teacher and the teacher’s aide.” The parents disagreed with the school district’s proposal. Instead, they requested a regular kindergarten placement on Rafael’s home campus.

Through mediation, the parties agreed to full-time placement in a special education classroom on a different campus, with the promise that the school district would consider mainstreaming opportunities and transition to a regular

2 The Third Circuit Court of Appeals includes the states of Delaware, New Jersey, and Pennsylvania.


classroom placement on Rafael’s home campus sometime in the future. Rafael continued in the agreed upon special education classroom. A half a year passed, and the school district still had not initiated any mainstreaming or meaningful contacts with nondisabled students. “Rafael’s class went to the lunchroom and assemblies with nondisabled children, but he and his classmates had no opportunity to socialize with the other children. Rafael did not participate in any classes, such as art, music, or physical education, with nondisabled children.” The parents again requested a due process hearing. The hearing officer upheld the school district’s self-contained placement, finding that Rafael was not ready for mainstreaming. The district court reversed.

Standard: Third Circuit adopts the Fifth Circuit’s LRE standard, applying the following three factors: 1. Whether the school district has made reasonable efforts to accommodate

the child in a regular classroom with supplementary aids and services; 2. A comparison of the educational benefits available in a regular class and

the benefits provided in a special education class; and 3. The possible negative effects of inclusion on the other students in the

class. Results: The Court upheld the district court’s determination that the school district violated the mainstreaming requirement of IDEA:

1. The school district’s IEP was inadequate: student goal “to observe, model

and socialize with nondisabled children;” and teacher goal “to facilitate Rafael's adjustment to the kindergarten classroom.” There were “no provisions for supplementary aids and services in the kindergarten class aside from stating that there will be ‘modification of regular class expectations’ to reflect Rafael’s disability.”

2. The school district made only negligible efforts to include Rafael in a

regular education classroom. Its failure to have a curriculum plan, a behavior management plan, and supports for school personnel resulted in his unsuccessful placement.

C. The Tenth Circuit3 and Least Restrictive Environment: L.B. and J.B. ex rel. K.B.

v. Nebo Sch. Dist., 379 F.3d 966 (10th Cir. 2004).

Facts: The parents of K.B., a child with autism, enrolled her in a private mainstream preschool and requested that the district pay for a “supplementary” aide and 35-40 hours per week of primarily home-based ABA services. The

3 The Tenth Circuit Court of Appeals includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.


district refused, instead offering to provide K.B. with a program in its “hybrid” special education/regular education preschool (Park View), as well as SLP, OT and 8-15 hours per week of ABA programming. The parents filed a request for due process seeking reimbursement for the cost of K.B.’s intensive ABA program as a “supplementary service” and the cost of her “supplementary” aide. K.B.’s ABA program costs included:

(1) forty hours per week of ABA services; (2) seven and one-half hours per week of preparation time for ABA therapists to plan for individual sessions; (3) two and one-half hours per week for a team meeting with K.B.’s five ABA therapists; (4) one day per month for an ABA consultant to train the five therapists; (5) materials for ABA program; (6) one hour of speech therapy per week; and (7) occupational therapy as needed.

The hearing officer and the district court found for the school district, concluding that it had offered K.B. a FAPE.

Holding of the Court: The Tenth Circuit reversed the lower court’s decision, holding that the district had violated the IDEA by denying K.B. an education in the LRE. In addressing the LRE issue, the Tenth Circuit adopted the two-part test set forth by the Fifth Circuit in Daniel R.R. v. Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989), which asks: (1) whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily; and (2) if not, whether the school district has mainstreamed the child to the maximum extent appropriate. The Tenth Circuit also adopted the Fifth Circuit’s “non-exhaustive” list of factors to consider when answering the first prong of this test, which includes: (1) steps the school district has taken to accommodate the child in the regular classroom, including the consideration of a continuum of placement and support services; (2) comparison of the academic benefits the child will receive in the regular classroom with those she will receive in the special education classroom; (3) the child’s overall educational experience in regular education, including non-academic benefits; and (4) the effect on the regular classroom of the disabled child’s presence in that classroom. The case turned on the first prong of the Daniel R.R. test. In treating this case as a placement rather than a methodology dispute, the Tenth Circuit avoided addressing whether or not the district’s proposal offered K.B. a FAPE, and instead focused its analysis on a comparison of the two methodologies to determine which one was superior from an LRE standpoint.


Key Quotes:

“... Park View was not K.B.’s least restrictive environment. Because this conclusion establishes a violation of the IDEA’s substantive LRE provision, this court need not address whether Nebo provided K.B. with a FAPE.... [T]he LRE requirement is a specific statutory mandate. It is not, as the district court in this case mistakenly believed, a question about educational methodology.” “A preponderance of the evidence shows that the academic benefits which K.B. derived from the mainstream classroom are greater than those she would have received in Park View’s classroom. Despite the hearing officer’s contrary conclusion, the evidence shows that K.B. was succeeding in the mainstream classroom with the assistance of her aide and intensive ABA program....On the other hand…Park View’s students functioned at a considerably lower level than K.B. Thus, K.B. benefitted academically much more from her regular classroom than she would have from Park View’s hybrid classroom. This factor strongly favors a conclusion that Park View was not the [LRE] for K.B.”

“Likewise, the non-academic benefits of K.B.’s mainstream classroom outweigh the non-academic benefits she could have received at Park View. K.B.’s primary needs involved improving her social skills….[T]he mainstream classroom provided K.B. with appropriate role models, had a more balanced gender ratio, and was generally better suited to meet K.B.’s behavioral and social needs than was Park View’s hybrid classroom.”

IV. SUPPLEMENTARY AIDS AND SERVICES

A. 34 C.F.R. § 300.42. Supplementary aids and services

“Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with §§ 300.114 through 300.116.” U.S. Department of Education discussion of 34 C.F.R. § 300.42: “As noted in the Analysis of Comments and Changes section for subpart B, we have clarified in § 300.107(a) that States must ensure that public agencies take steps to provide nonacademic and extracurricular services and activities, including providing supplementary aids and services determined appropriate and necessary by the child’s IEP Team to afford children with disabilities an equal opportunity for participation in those services and activities. We have, therefore, revised the definition of supplementary aids and services in new § 300.42 (proposed § 300.41) to be consistent with this change. Changes: We have added language in new § 300.42 (proposed § 300.41) to clarify that supplementary aids and services can be provided in extracurricular and nonacademic settings to enable children


with disabilities to be educated with nondisabled children to the maximum extent appropriate.” 71 Fed. Reg. 46578 (August 14, 2006).

B. U.S. Department of Education, Office for Civil Rights, Significant Guidance Document (Jan. 25, 2013) (To Ensure That Students with Disabilities have Opportunities to Participate in Extracurricular Athletics Equal to Those of Other Students)

Key Excerpts: “In general, OCR would view a school district’s failure to address participation or request for participation in extracurricular athletics for a qualified student with a disability with an IEP in a manner consistent with IDEA regulations as a failure to ensure Section 504 FAPE and an equal opportunity for participation.”

“In providing or arranging for the provision of extracurricular athletics, a school district must ensure that a student with a disability participates with student without disabilities to the maximum extent appropriate to the needs of that student with a disability.” 34 CFR § 300.107, 300.117 “The provision of unnecessarily separate or different services is discriminatory.” “OCR encourages school districts to work with their community and athletic associates to develop broad opportunities to include students with disabilities in all extracurricular activities.” “Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program—even with reasonable modifications or aids and services should still have an equal opportunity to receive the benefits of extracurricular athletics.” “When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.” “In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”

C. 34 C.F.R. § 300.105 Assistive technology

“(a) Each public agency must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in §§


300.5 and 300.6, respectively, are made available to a child with a disability if required as a part of the child’s— (1) Special education under § 300.36; (2) Related services under § 300.34; or (3) Supplementary aids and services under §§ 300.38 and

300.114(a)(2)(ii).” “(b) On a case-by-case basis, the use of school-purchased assistive technology

devices in a child’s home or in other settings is required if the child’s IEP Team determines that the child needs access to those devices in order to receive FAPE.”

D. 34 C.F.R. § 300.107 Nonacademic services

“The State must ensure the following: (a) Each public agency must take steps, including the provision of

supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

(b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.”

E. 34 C.F.R. § 300.117 Nonacademic settings

“In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in § 300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP Team to be appropriate and necessary for the child to participate in nonacademic settings.”

V. INCLUSION

“IDEA does not use the term “inclusion”; consequently, the Department of Education has not defined that term.”” LRE means that, to the maximum extent appropriate, school districts must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers in the school they would attend if not disabled, unless a student’s IEP requires some other arrangement. This requires an individualized inquiry into the unique educational needs of each disabled student in determining the possible range of aids and


supports that are needed to facilitate the student’s placement in the regular educational environment before a more restrictive placement is considered. If the student’s IEP cannot be implemented satisfactorily in that environment even with the provision of supplementary aids and services, the regular classroom in the school the student would attend if not disabled is not the LRE placement for that student. IDEA does not require that every student with a disability be placed in the regular classroom regardless of individual abilities and needs. This recognition that regular class placement may not be appropriate for every disabled student is reflected in the requirement that school districts make available a range of placement options, known as a continuum of alternative placements, to meet the unique educational needs of students with disabilities. This requirement for the continuum reinforces the importance of the individualized inquiry, not a “one size fits all” approach.

Permissible Factors

The educational benefits available to the disabled student in a traditional classroom, supplemented with appropriate aids and services, in comparison to the educational benefits to the disabled student from a special education classroom;

The non-academic benefits to the disabled student from interacting with nondisabled students; and

The degree of disruption of the education of other students, resulting in the inability to meet the unique needs of the disabled student.

However, school districts may not make placements based solely on factors such as the following:

category of disability; severity of disability; configuration of delivery system; availability of educational or related services; availability of space; or administrative convenience. In a Redacted Letter dated March 30, 2009, OSEP responded to the following question: “Would full inclusion for all and/or most students within a public school district, regardless of their needs, etc., be a violation of this regulation (34 CFR 300.115)?” OSEP’s Response:

Under 34 CFR §300.115, each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services [emphasis added]. This continuum must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions, and make provision for


supplementary services such as resource room or itinerant instruction, to be provided in conjunction with regular class placement. There is no requirement that each of the placements on the continuum be utilized. Rather, under 34 CFR §300.114(a)(2), each public agency must ensure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Moreover, placement decisions for children with disabilities must be made on an individual basis, based on the unique needs of each child, by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. 34 CFR §300.116(a)(1). The group that makes the placement decision must do so in conformity with the least restrictive environment provisions (LRE) of 34 CFR §§300.114-300,118. The child's placement must be determined at least annually, be based on the child's individualized education program (IEP), and be as close as possible to the child's home. Unless the IEP requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled and, in selecting the LRE, consideration must be given to any potential harmful effect on the child or on the quality of services that the child needs. In addition, the child must not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 34 CFR §300.116(a)(2)-(e).

VI. LOCATION

A. Regulations governing location

1. “In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that … the child’s placement … is as close as possible to the child’s home.” 34 C.F.R. ' 300.116(b)(3).


including a preschool child with a disability, each public agency must ensure that … unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.” 34 C.F.R. ' 300.116(c).

3. “As used in this part, the term individualized education program or IEP

means a written statement for each child with a disability that is


developed, reviewed, and revised in a meeting in accordance with §§ 300.320 through 300.324, and that must include ... [t]he projected date for the beginning of the services and modifications described in paragraph (a)(4) of this section, and the anticipated frequency, location, and duration of those services and modifications.” 34 C.F.R. ' 300.320(a)(7).

B. The Fifth Circuit and Neighborhood School: White v. Ascension Parish School

Board, 343 F.3d 373 (5th Cir. 2003)

Facts: Dylan was a hearing-impaired second grader, about to move up to third grade. He had been attending a school that was about five miles further away than his neighborhood school because the school district had decided to centralize services for hearing-impaired students. Dylan had the services of a “transliterator” but he was the only elementary aged student who needed this person. Thus, it would have been just as easy for the school to send Dylan and his transliterator to his neighborhood school as it was to send them to the centralized location. Everyone agreed that Dylan was doing well in school. The parents’ request for the move to the neighborhood school was primarily based on their desire for him to have the social benefit of going to school with the kids in the neighborhood. Lengthy IEP meetings were held on this issue but consensus was not achieved and the parents ultimately requested a due process hearing.

The school district had prevailed at the due process level and at the due process appeal (Louisiana is a two-tier state.) The parents took the matter to federal court and, at the district court level, the parents won. The school district appealed to the Fifth Circuit. Holding: Fifth Circuit upheld decisions below in favor of the school district. Key Quotes:

“These statutory provisions do not, however, explicitly require parental participation in site selection. ‘Educational placement,’ as used in the IDEA, means educational program–not the particular institution where that program is implemented.”

VII. ADDITIONAL CASES Sumter County School District 17 v. Heffernan, 56 IDELR 186 (4th Cir. 2011) The Court affirmed fact findings of the district court that the district failed to provide FAPE, largely due to a failure to provide all of the ABA therapy called for by the IEP. Testimony showed that no more than 10 hours per week, even though the IEP called for 15 hours of ABA


therapy. This was accompanied by significant behavioral problems in the classroom. Moreover, the court held that the home placement provided by the parents was appropriate, even though it was more restrictive than the school placement. Key Quote: As the district court noted, however, this circuit has “never held that parental placements must meet the least restrictive environment requirement.” M.S. ex. rel. Simchick v. Fairfax County School Board, 553 F.3d 315 (4th Cir. 2009). Comment: The court also quoted from its own decision in the Carter v. Florence case that was later affirmed by the U.S. Supreme Court, noting that “mainstreaming is a policy to be pursued so long as it is consistent with the Act’s primary goal of providing disabled students with an appropriate education. Where necessary for educational reasons, mainstreaming assumes a subordinate role in formulating an educational program.” Barron v. South Dakota Board of Regents, 57 IDELR 122 (8th Cir. 2011) Parents of deaf and hearing impaired students argued that the LRE for deaf students was “a school of their own.” The court noted there was some support for this position, citing The Individuals with Disabilities Education Act and Its Impact on the Deaf Community at 6 Stanford Journal of Civil Rights and Civil Liberties 355 (2010). However, the court rejected the argument, noting that “The IDEA’s integrated classroom preference makes no exception for deaf students.” Comment: The state decided to shutter its statewide school for the deaf, which had been in existence since 1880. There were only 389 children with hearing impairments in the state. Only 32 of those students (8%) were served at the School for the Deaf, but they received 91% of the budgeted funds. So the state decided to shut down SDSD and disperse its 32 students to local districts, using the money for outreach activities and services. J.P. v. New York City DOE, 58 IDELR 96 (E.D.N.Y. 2012) The court upheld the district’s decision to place the student in a more restrictive environment based primarily on the student’s disruptive behavior. “The reports from J.P.’s instructors at West End indicate that he was an inflexible child that became easily frustrated and argumentative when he did not get his way.” Clark v. Special School District of St. Louis, 58 IDELR 126 (E.D. Mo. 2012) The court affirmed the school district’s decision to transfer the student to a more restrictive setting, a separate public day school which used SORs (secure observation rooms). The court noted that “All the educators involved in the change of placement decision supported the decision, including the use of support rooms and/or SORs when necessary to address JJ’s aggressive and dangerous behavior.” Dear Colleague Letter, 58 IDELR 290 (OSEP 2012)


OSEP reminds us of the LRE requirement as applied to preschool children. As the memo points out, LRE is an important component of the law and applies to all children, including preschoolers in districts that do not offer preschool programs to non-disabled children. OSEP advises such districts to “explore alternative methods to ensure that the LRE requirements are met for that child.” Stamps v. Gwinnett County School District, 59 IDELR 1 (11th Cir. 2012) The Circuit Court affirmed the ruling that the students did not need to be served at home. The parents’ argument was based on the testimony of their private physician but the court concluded that the doctor’s testimony did not establish a health-based need for homebound instruction. H.D. v. Central Bucks Sch. Dist., 59 IDELR 275 (D. Pa. 2012) The Court agreed with the Hearing Officer’s finding that the District offered the student a FAPE in the least restrictive environment. Parents of a student with a learning disability, social skills deficits, and history of aggressive and abusive behavior, claimed that the emotional support necessary for the student to make progress could be provided at the student’s neighborhood school. The District disagreed pointing to the fact that numerous behavior interventions and supports through pull-out services had been attempted at the neighborhood school, but the student’s adverse behaviors had persisted and had escalated. The school had completed and incorporated findings from an FBA, had made numerous revisions to the student’s BIP, had considered data from a BCBA, provided classroom behavioral supports, and had provided one-to one pull-out support with the psychologist. While these interventions had increased academic progress, there was no improvement with the student’s behavior or social isolation. In fact, the negative behaviors increased. Based on this, the District recommended the student be placed in an itinerate behavioral support program located on another campus so that the student’s behavioral needs could be met through support by staff with specific training to assist the student with social skills development, reduction of inappropriate behaviors, and to provide the student with a new social peer group for his social development. The Court found that the “LRE would ideally be the same school the child would have attended if [he] were not disabled; however, such placement is only appropriate to the extent that it satisfactorily educates the disabled child.” Placement in the emotional support program at the new campus was necessary to meet the student’s needs, and that these services could not be provided at the neighborhood campus, therefore, the District had offered an IEP which provided meaningful educational benefit in the LRE.

The information in this handout was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.

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LRE Update: Making Legally

Compliant Placement Changes

Jenny Wells

and

Elvin Houston

IDEA’s LRE Mandate

• To the maximum extent appropriate, children with disabilities

are educated with children who are nondisabled;

and

• Special classes, separate schooling, or other removal of

children with disabilities from the regular educational

environment occurs only if the nature or severity of the

disability is such that education in regular classes with the use

of supplementary aids and services cannot be achieved

satisfactorily

IDEA Regulations at 34 CFR 300.114

What does the IDEA say about

Inclusion?

• It doesn’t.

• From OSEP LRE memo (1994)

“IDEA does not use the term ‘inclusion’;

consequently, the Department of Education

has not defined that term. However, IDEA

does require school districts to place students

in the LRE.”

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Maximum Extent Appropriate

is not Maximum extent possible.

Daniel R. R. Factors

• In 1989, the Fifth Circuit developed

what is perhaps the most widely

used test for LRE, the Daniel R.R. test

(Daniel R.R. v. State Board of

Education, 874 F.2d 1036, 1048-49

(5th Cir. 1989)). This test consists of

two parts, consisting of 5 factors.

Two-Part Test

• 1. Can education in the regular classroom,

with the use of supplementary aids and

services, be achieved satisfactorily for a

particular student?

• 2. If the student is to be removed from a

regular education classroom and placed in a

more restrictive setting, has the student been

mainstreamed to the maximum extent

appropriate? (874 F.2d at 1048-49).

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Daniel R.R. Factors

Factor 1

Can education in the regular classroom, with the use of supplementary aids and services, be achieved satisfactorily for a particular student?

• “The Act requires states to provide supplementary aids and services and to modify the regular education program when they mainstream handicapped children.”

• “If the state has made no effort to take such accommodating steps, our inquiry ends, for the state is in violation of the Act's express mandate to supplement and modify regular education.”

Factor 2

Has the school taken sufficient steps to accommodate the

student in the regular classroom with the use of

supplementary aids and services and modifications?

• “The Act does not permit states to make mere token gestures to accommodate

handicapped students; its requirement for modifying and supplementing regular

education is broad.”

• “Although broad, the requirement is not limitless. States need not provide every

conceivable supplementary aid or service to assist the child.”

• “[T]he Act does not require regular education instructors to devote all or most of

their time to one handicapped child or to modify the regular education program

beyond recognition.”

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Factor 3

Will the student receive educational benefit from the

regular education?

• “This inquiry necessarily will focus on the student's ability to grasp

the essential elements of the regular education curriculum.”

• “We reiterate, however, that academic achievement is not the only

purpose of mainstreaming. Integrating a handicapped child into a

nonhandicapped environment may be beneficial in and of itself.

Thus, our inquiry must extend beyond the educational benefits that

the child may receive in regular education.”

Factor 4

What will be the effect of the student's presence in the

regular education classroom on the education of the

other students?

• “[T]he benefit that the child receives from mainstreaming

may tip the balance in favor of mainstreaming, even if the

child cannot flourish academically.”

• “On the other hand, placing a child in regular education may

be detrimental to the child.”

Factor 5If the student is to be removed from a regular education

classroom and placed in a more restrictive setting, has the

student been mainstreamed to the maximum extent

appropriate?

• “Where a handicapped child is so disruptive in a regular classroom that the education of

other students is significantly impaired, the needs of the handicapped child cannot be met in

that environment. Therefore regular placement would not be appropriate to his or her

needs.”

• “[T]he child may require so much of the instructor's attention that the instructor will have to

ignore the other student's needs in order to tend to the handicapped child.”

• “The Act and its regulations mandate that the school provide supplementary aids and

services in the regular education classroom. A teaching assistant or an aide may minimize

the burden on the teacher. If, however, the handicapped child requires so much of the

teacher or the aide's time that the rest of the class suffers, then the balance will tip in favor

of placing the child in special education.”

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Let’s Review

1. Have Steps been taken to accommodate child in regular education?

2. Were these steps sufficient or token?

3. What is the educational benefit in regular education?

4. What’s the balance of benefits?

5. Effect on regular classroom environment?

Let’s Practice!

Scenario Student A

Alicia• Eligibility: Autistic and Speech Impaired

• Background Information: Alicia is 3 years old. She has attended a private

pre-school for the past year where she receives ABA therapy. Parents are

seeking to place her in public school. She is non-verbal with emerging

verbal skills.

• Proposed Placement: Your district has a PPCD program with special

education students, and a half-day pre-k program. You are proposing a

split of PPCD and pre-K.

• Parent Concerns: Parents want one-to-one ABA therapy in the gen ed Pre-

class. They do not want their daughter with the PPCD students.

Let’s Practice!

Scenario Student B

Ben• Eligibility: Intellectually Disabled, Speech Impaired, OHI – Down

Syndrome

• Background Information: Ben is a 3rd grade student who has a 50/50 mix

of gen ed and special ed classes. His special ed classes are Life Skills.

• Proposed Placement: Your Science and Social Studies teachers have

stated that Ben is getting no benefit from time in the gen ed class. The

ARD Committee will recommend moving Ben into Life Skills for these two

periods.

• Parent Concerns: Parents believe Ben gets a lot of social benefit from gen

ed inclusion, and they are seeking more. They want full inclusion.

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Let’s Practice!Scenario Student C

Chris• Eligibility: Emotionally Disturbed

• Background Information: Charlie is a 7th grade student who transferred into your district this year. He was in all gen ed classes in his former district, but was frequently in the DAEP for threats and fighting. He was dating a student in your district, and her mother has called the middle school principal and said she doesn’t want Chris near her daughter (same class).

• Proposed Placement: Your Superintendent informed you that this student is not welcome on campus. He wants you to put him into your Behavior Unit.

• Parent Concerns: Parents have outside diagnosis of “Asperger’s like characteristics” and want Chris carried as AU. They believe his discipline problems are the result of failing to manage his behavior.

Let’s Practice!Scenario Student D

Darcy• Eligibility: Learning Disabled and Emotionally Disturbed

• Background Information: Darcy is entering high school. She has always

been carried as SLD, but this past year she developed a lot of emotional

problems. After a suicide attempt and hospitalization, the ARDC added the

eligibility of ED and added counseling to her IEP. She has many absences

and is barely passing her classes. She has been in some Content

Mastery/Resource classes for academics, but is in all gen ed.

• Proposed Placement: A behavior unit or classroom due to her emotional

issues.

• Parent Concerns: Parents want the District to pay for private placement in

an out-of-state residential facility.

Let’s Practice!Scenario Student E

Evan• Eligibility: OHI for asthma, ADHD. (Formerly Speech Impaired)

• Background Information: Evan is entering 10th grade. He used to receive sped services for speech impairment, but was discharged in 7th grade. He continues to remain eligible as OHI for ADHD and asthma. He had dozens of absences last year and Parent says Evan has been diagnosed with severe anxiety and depression, and that he was bullied.

• Proposed Placement: Parent is requesting Homebound. She has provided a form from Evan’s physician saying he needs Homebound due to “not fitting in at school.” The ARDC does not agree to the placement, and thinks he should be on campus.

• Parent Concerns: Parent says Evan cannot handle school anymore, and his asthma prevents him attending. However, Evan is on a church softball league and is often seen in the community with friends.

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Let’s Review

Scenario Student A

Alicia

1. Steps to accommodate child in regular

education?

2. Sufficient or token?

3. Educational benefit in regular education?



Let’s Review

Scenario Student B

Ben


education?





Let’s Review

Scenario Student C

Chris


education?





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Let’s Review

Scenario Student D

Darcy


education?





Let’s Review

Scenario Student E

Evan


education?





Thank you!

The information in this handout was created by

Walsh, Anderson, Gallegos, Green & Treviño, P.C.

It is intended to be used for general information

only and is not to be considered specific legal

advice. If specific legal advice is sought, consult

an attorney.

7/4/2013

9

Contact

JENNY WELLS

• Email: [email protected]

ELVIN HOUSTON

• Email: [email protected]

WALSH, ANDERSON, GALLEGOS, GREEN & TREVINO, P.C.

P. O. Box 2156, Austin, Texas 78768

Phone: 512-454-6864 Fax: 512-467-9318

www.walshanderson.com

Documents

LEAST RESTRICTIVE ENVIRONMENT (LRE): LEGAL UPDATE · the student’s ability to grasp the essential elements of the regular education curriculum. The Court stated “we must pay close