[IEP_guide] Re: THE PLACEMENT DILEMMA

[Guest guest]

Passing this on

from IEP_guide:KathyR

THE PLACEMENT DILEMMA

LEAST RESTRICTIVE ENVIRONMENT

by

L. Carrico

Modrall, Sperling, Roehl, & Sisk, PA

If you've spent any time in the teacher's lounge, a teacher's union meeting,

or having dinner with a regular education teacher, you

know doubt have heard a comment similar to the following:

I don't know why they insist on putting ny in my classroom. I've got my hands full trying to teach 19 other

students. I'm a regular

education teacher. It's not my job to teach special education students.

The reason that school districts must insist on ny's placement in a regular education classroom is

because, for most students,

it's the law. The Education of the Handicapped Act (later renamed the Individuals

With Disabilities Education Act ( " IDEA " )) is designed to eliminate the former practice of many

school districts to warehouse students who have disabilities until they

are old enough to be shoved out the door. The IDEA restates the public

policy of this nation to educate all

children, including all children with

disabilities; acknowledges that unfounded stereo types regarding certain

persons with disabilities can be overcome if such persons

are integrated into a mainstream environment; acknowledge that, generally

speaking, students both with and without disabilities

will have a richer educational experience in an integrated setting; and takes

into account studies which have shown the inclusion of

students with disabilities in regular education setting results in improved

self-concept, social skills, problem-solving skills, and

academic performance.

In furtherance of these noble objectives, Congress mandated school districts

to educate all students with disabilities in the least

restrictive environment ( " LRE " ). The Federal Regulations state

the scope of the LRE obligation in detail:

Section 300.550( General LRE Requirements. Each public agency shall

ensure that (1) 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 non-disabled; (2) that special classes, separate schooling or

other removal of children with disabilities from the regular

educational environment occur 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.

Section 300.551. Continuum of Alternative Placements.

(a) 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.( The continuum required in paragraph

(a) of this section must (1)

include the alternative placements

listed in the definition of special education to Section 300.26. . .and (2) make provisions for supplementary

services such as resource room or itinerants instruction to be provided

in conjunction with regular class placement.

Section 300.552. Placements. In determining the educational placement of

a child with a disability, including a pre-school

child with a disability, each public agency shall ensure that. . .© unless

the IEP of a child with a disability requires some other

arrangement, the child is education in the school that he or she would

attend if non-disabled; (d) in selecting the LRE,

consideration is given to any potential harmful effect on the child or

in the quality of services that he or she needs; and (e) a child

with a disability is not removed from education in age-appropriate regular

education classrooms solely because of needed modifications

to the general curriculum.

Section 300.553. Non-Academic Settings. In providing or arranging for

the provision of non-academic and extra curricular activities,

including meals, recess periods, and [extra curricular activities, counseling

services, health services, clubs, etc.], each public

agency shall ensure that each child with a disability participates with

non-disabled children in those services and activities to the

maximum extent appropriate to the needs of that child.

The IDEA's LRE requirements create a strong presumption that children

with disabilities should be educated in the regular

classroom, with appropriate aides and supports. How the educational services

are to be implemented in the regular education classroom

is to be determined on an individual basis by the student’s IEP team. The IDEA mandates that

the student's regular education teacher be included in the IEP team. The

regular education teacher, in discussing the student's current levels of

performance, should

provide information regarding the child's behavioral and academic performance

in the regular education classroom, and whether the

aides and accommodations to assist the child are working. If they are

not, the IEP team must consider whether additional aides and

support would allow the child to make academic progress in the regular

education classroom. If no, the IEP team may consider more

restrictive placement options.

Some courts have framed the school's LRE obligation as a two part inquiry:

First, the school district must determine whether

education in the regular classroom, with supplementary aids or services,

can be achieved satisfactorily. Oberti v. Board of Education, 955 F.2d 1204

(3rd Cir. 1993); R.R. v. State Board of Educ., 874 F 2d 1036 (5th Cir. 1989). If yes, the child

is to be educated in the regular education classroom. Id. If not, LRE

allows for a placement outside of the regular education classroom, but in

the environment that includes the child with his or her non-disabled

peers to the maximum extent possible. Id.

Factors that should be considered when determining whether the student

can be educated in a regular education classroom include:

the education benefits of a regular education classroom; the non-

academic benefits of such placements; the effect that the student

has on other children and the teacher; and cost. Sacramento City Unified

School Dist. v. H., 14 F. 3d 1398 (9th Cir. 1994).

The fact that a student may arguably make greater progress is segregated

may not warrant excluding the child from the regular

education classroom. Oberti, 993 F. 2d 1204.

A student's maturity level and cognitive levels may properly be considered.

For example, it may be inappropriate to include a

teenager who functions at the cognitive level of a pre-schooler in regular

education middle school classroom. In such a situation it

may be that, even with supplementary aids and services, the student will not be able to socialize with peers in

a meaningful manner,

receive instruction, or otherwise make educational gains.

A general education classroom may be inappropriate if the student's service

needs so dominate the teacher's attention and time that it

substantially interferes with the learning of other students. Greer v.

Rome City School Dist., 950 F.2d 688 (11th Cir. 1991). Before

opting for a more restrictive placement, however, the school must consider

other options, ie the additional of an educational aide.

Inclusion in a regular education program may also be inappropriate if

the placement threatens or poses a danger to the student or

others. Clyde K. v. Puyallup School Dist.,31 F.2d 1489 (9th Cir. 1994).

Lastly, the LRE obligation does not require a school district to completely

modify its programs to allow for inclusion.

The general rule is, however, that students, where possible should be

educated in a regular education classroom. If a school district

opts for a more restrictive placement, it should have evidence to support

its decision. Probably the best evidence is an unsuccessful

attempt to implement services in the regular education classroom, with

supplemental aids and services. While the IDEA does not compel

a school district to try and fail a lesser restrictive placement, on close

calls the school district should try the lesser restrictive

placement first.

For students who have behavior problems, the IEP team must consider positive

behavioral intervention, strategies and supports to

address the child's misbehavior. The behavioral intervention plan should focus

on strategies that enable the student to remain in the

classroom, if at all possible. Behavioral strategies that involve removal

from the classroom, particularly long-term removals, are

inconsistent with the school district's LRE obligations.

This, of course, does not mean that every child with a disability must

be educated in a regular education classroom. If a student's

behavior in the regular education classroom, even with the provision of

appropriate behavioral supports, strategies and interventions,

nonetheless significantly impairs the child's learning, or the learning

of others, the IEP team may properly choose a more

restrictive placement.

Significant discrepancies in intellectual functioning will also support

removal to a more restrictive environment. Such more

restrictive placements may be justified where the student needs a low

(i.e. 8:1 or less) student to teacher ratio, and the intensive

instruction needed cannot be implemented with special education teachers

and service providers and other modifications to the

regular education classroom.

Lastly, it is appropriate for school districts to remove students from

the regular education classroom to receive speech and language

therapy, occupational therapy, and other services that, due to the nature of the service activities, would be

disruptive to the

regular education learning environment.

The continuum of educational placements is, just that, a continuum. Within

a continuum, there are an infinite number of placement

options. At the least restrictive end of the continuum are placements

that allow for full inclusion in the regular education

classroom, with appropriate aides and supports. Self-contained classrooms

for special education students are more restrictive.

Home bound instruction, or placement in non-campus institutions are the most

restrictive placements, and should only be used as a last

resort. Where a more restrictive physical location is necessary, the IEP

team should consider options within that setting that would

lessen the restrictiveness of the placement. For example, if an IEP team

determines that a student needs to be placed in a self-

contained classroom because of behavior disorders, the IEP team should

consider whether, given a student's increased interest in a

certain subject, some teacher's teaching styles of a teacher(s), or other

factors, the student can be integrated into the regular

education classroom for at least some subjects. Similarly, recesses, lunch

hours, school assemblies, and other school activities offer

good opportunities to include virtually all students with disabilities

in some mainstream general education activities.

The IDEA creates a preference that children with disabilities be educated

in their neighborhood schools. The IDEA does not, however,

obligate school districts to duplicate all of its available services at

each neighborhood school. Stated otherwise, the IDEA recognizes

that school districts must manage their resources, and that it is appropriate

for school districts to consolidate services for a

particular disability at one or more locations. By way of example, students

with autism, severe behavior disorders, blindness,

deafness, and other disabilities may have relatively expansive service

needs. School districts may properly establish regional

service sites to provide for these needs, even though it may involve transporting

the student out of his or her neighborhood school.

Murray v. Montrose County School District, 51 F.3d 921 (10th Cir. 1995);

Urban v. Jefferson County School District R-1, 89 F.3d 720

(10th Cir. 1996); Flour Bluff Ind. School Dist. V. M., 91 F.3d

689 (5th Cir. 1996).

If an out of neighborhood placement is necessary, the IEP team should

place the student at the school (that has the appropriate

services) that is closest to the child's home.

Importantly, in making a decision to place a child in a school other than the neighborhood school, the IEP team

should consider all

relevant factors. IEPs are to be driven by the needs of the individual

student, not the program offerings of the school. The

benefits of a regional specialized program may be outweighed by the adverse

effect of the additional transportation time, difficulties

with removing a severely disabled child from familiar surroundings, a

child's adverse reaction to changes, or other factors. If a

child's service needs require placement in a non-neighborhood school,

the IEP team must still ensure that, at the non-

neighborhood location, the student is

educated with his or her non-disabled peers to the maximum extent

appropriate.

Parents must be given an active voice and allowed to participate in placement

decisions. The rule providing for parental involvement

does not, however, give parents veto power over IEP team placement decisions.

This rule applies with respect to situations where

parents want a lesser restrictive placement or a more restrictive placement.

Often, parents may seek a more restrictive placement,

such as a placement in a self-contained classroom or removal to a specialized

off-campus treatment facility. If the IEP team

determines that the student's needs may satisfactorily be met in a lesser

restrictive environment, the school district must insist on

the lesser restrictive placement.

With the exception of those students who have an IEP that specifically

requires access to extra curricular programs as a

related service (such situations are extremely rare, but might include

a situation such as a student with a mental health disorder

that includes a severe low self esteem who needs access to a particular

program, i.e. a music or athletic program, to enable him

to make academic progress at school), the LRE obligation does not create

an unfettered entitlement to access to extra curricular

activities for students with disabilities. Rather, such students must

be provided with an equal opportunity to that given to their

non-disabled peers.

If a parent's hostility toward a particular placement is so great that

it effectively denies the student the opportunity to make

educational progress, the IEP team may consider such hostility when making

the placement decision. Some courts have held that where

parental hostility is of a degree that it effectively undermines the effectiveness

of the placement, parent hostility may properly be

considered in deciding whether the proposed placement is appropriate.

Board of Education of Community Consolidated School

District No. 21, Cook County v. Illinois State Board of Education, 938

F.2d 712 (7th Cir. 1991); Greenbush School Community v. Mr. And Mrs. K,

949 F. Supp. 934 (D. Me. 1996).

_