Least Restrictive Environment

1
Least Restrictive Environment

• Sherrie Brown
• Special Education and the Law
• Winter Quarter 2009

2
Least Restrictive Environment (LRE)

• Constitutional basis for LRE
• Statutory and regulatory requirements
• Judicial interpretations
• Policy reasons behind rebuttable presumption
  concept

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Constitutional Legislative Basis for LRE

• Legal doctrine that even if legislative purpose
  of government action is legitimatee.g.,
  promoting public health and safetypurpose may
  not be accomplished by means that broadly limit
  personal liberties if can be accomplished in less
  oppressive or restrictive manner.
• State is forbidden from using a bazooka to kill a
  fly on a citizens back if a fly swatter would
  accomplish the task.
• Historical treatment of disabled individuals in
  this country?

4
IDEA mandates LRE

• Unlike FAPE and related services, LRE is not
  defined anywhere in the statute.
• Supremes have not ruled on LRE and the lower
  courts differ on what standard to apply.
• IDEA regulations include guidelines.
• However, how are mainstreaming, inclusion, LRE
  differentor are they?

5
How do you define these terms?

• Mainstreaming not in the IDEA but has come to
  mean placement in a regular education setting.
  In some or all of school activities.
• Inclusion or integrated education child in the
  regular classroom with adaptive curriculum.
• Both are examples of the LEAST RESTRICTIVE
  ENVIRONMENT CONTINUUM.
• From Colker and Milani (2006) Everyday Law for
  Individuals with Disabilities.

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LRE Statutory Guidance

• Children with disabilities to be educated in the
  same setting (regular educational environment) as
  their non-disabled peers to the maximum extent
  appropriate.
• Removal should only occur when nature or severity
  is such that education in regular classes with
  use of supplementary aids and services cannot be
  achieved satisfactorily. 20 USC 1412
• Therefore, it is not an absolute requirement that
  all children be served in neighborhood and/or
  regular setting/classroom.

7
Federal Regulations

• 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,
  and
• 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 of a
  child 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
• Continuum of Alternative Placements must be
  available. 34 C.F.R. 300.115

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Placement

• (a) The Placement Decision
• (1) Is made 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 and
• (2) Is made in conformity with the LRE
  provisions of the regulations
• (b) The childs placement
• (1) Is determined at least annually
• (2) Is based on the childs IEP and
• (3) Is as close as possible to the childs
  home
• (c) 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
• (d) 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
  and
• (e) A child with a disability is not removed from
  education in age-appropriate regular classrooms
  solely because of needed modifications in the
  general education curriculum. 34 CFR 300.516

9
Washington State Regulations

• Mirror the federal regulations on LRE.
• See handout of WAC 392-172A-02050 through 02070.

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So is it really so easy?
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Final thoughts on the LRE regulations

• Comments to IDEA Appendix A to Part C of 34
  CFR
• See handout
• Courts likely to support regular education
  classroom placement UNLESS
• Child harmed medically, emotionally or
  psychologically by the regular placement.
• Courts willing to remove a child from regular
  education when severely disruptive or
  dangerous--unless they are elementary children
  and then tough.

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Judicial standard for LRE

• Bd. Of Education of Sacramento City Unified SD v.
  Rachel Holland, 14 F.3d 1398 (9th Cir. 1994)
• Four-part Test
• Comparative educational benefits analysis
• Nonacademic benefits to child of interacting with
  others
• Possible negative effects of presence of child
  with disability on teacher and other children.
• Cost of supplemental aids associated with the
  placement.

13
A.B., et al. v. Bremerton School District (2008)

• Facts
• Settlement terms
• Placement of students residing in RHC (Francis
  Haddon Morgan Center) will not depend on their
  residency.
• Placement of students will be determined on
  individual basis and will provide FAPE in the
  LRE.
• Additional classroom space (portables) will be
  build at Bremerton High School to accommodate
  additional students.
• However, the portables will not necessarily be
  the classroom for the students from FHMC and if
  they are placed there, the portables will have
  restroom, sink etc.

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So is it so easy?

• FAPE vs. LRE
• What role does cost play?
• How many supplementary aids/services are
  required?
• Burden of proof?
• Rebuttable presumption concept
• What would you establish as standards?
• Trial Placementsdiscuss with the Vashon Case

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Temporary Restrictive Placement?

• Ms. S. v. Vashon Island SD, 337 F.3d 1115 (9th
  Cir. 2003)
• School district is not required to attempt a
  regular education placement prior to placement in
  a more restrictive setting WHEN It relies on
  relevant reports and records from previous school
  enrollment.
• Students academic performance well below peers
  and she had been home-schooled for past year.
• She would have benefited from socialization with
  non-disabled peers, but her need for
  individualized curriculum and history of some
  behavioral problems weighed in favor of more
  restrictive placement at least temporarily.