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Intervention in School and Clinic 2014, Vol. 50(1) 45 –50 © Hammill Institute on Disabilities 2014

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Policy and Law Briefs Tom Pierce, Associate Editor

532345 ISCXXX10.1177/1053451214532345Intervention in School and Clinic 50(1)Marx et al. research-article2014

1University of Nevada, Las Vegas, NV, USA 2University of Arkansas, Fayetteville, AR, USA

Corresponding Author: Peggy J. Schaefer Whitby, PhD, BCBA-D, University of Arkansas, 736 West Maple Street, Fayetteville, AR 72701. Email: [email protected]

Guiding IEP Teams on Meeting the Least Restrictive Environment Mandate

Teri A. Marx, MSW1, Jennifer L. Hart, MEd1, Leslie Nelson, PhD1, Jessica Love, PhD1, Christine M. Baxter, MEd1, Barbara Gartin, EdD2,

and Peggy J. Schaefer Whitby, PhD, BCBA-D2

Abstract Two diametrically opposed beliefs are held concerning the meaning of the least restrictive environment (LRE) when determining the class placements of students with disabilities. One group adheres to the placement philosophy that the LRE is always the general education setting. The other group believes that the LRE is where the students’ needs may best be met. The controversy concerning placement has resulted in a number of court cases that can provide guidance to individualized education program (IEP) teams when discussion of the LRE occurs. A checklist for use in IEP meetings is offered.

Keywords IEP process, LRE, inclusion

Meeting the Mandate of the Least Restrictive Environment

The least restrictive environment (LRE) is one of the six major principles of the Individuals with Disabilities Education Improvement Act (IDEIA) (2004; Murdick, Gartin, & Crabtree, 2007). The principle of the LRE can be traced to the “separate is never equal” doctrine found in Brown v. Board of Education of Topeka, Kansas (1954). Subsequent litigation (Mattie T. v. Holladay, 1981; Wyatt v. Stickney, 1972) dealt with the equity issue of placements when neither educational nor rehabilitative services were provided. When the Individuals with Disabilities Education Act was originally enacted in 1975, the legislation included the assurance that all children with disabilities were to receive a free appropriate public education (FAPE) within the LRE. The LRE is a location where students with dis- abilities can receive an education and related services while still being educated in the regular classroom to the greatest extent possible. It is important that schools have available a series of alternative placements that are hierarchical, with the preferred setting as the regular classroom to special classes, special schools, home instruction, and instruction in hospitals and institutions, and that there be supplemental services available to maintain students’ placements in the LRE setting.

The latest revision of IDEIA (2004) states in Article 8.2.3, “Special education is not a ‘place,’ but rather a set of services delineated in the student’s IEP [individualized edu- cation program].” This definition left those who were expecting the latest piece of legislation to more specifically define the LRE sorely disappointed (Hyatt & Filler, 2011). The lack of a definition in federal legislation or by the U.S. Supreme Court leaves room for interpretation of what con- stitutes the LRE for each student. Circuit courts left deci- sions regarding the LRE to educational professionals (school personnel) on the basis of the Supreme Court’s rul- ing in San Antonio School District v. Rodriguez (1973), which stated that “courts lack the specialized knowledge and experience” needed to resolve “difficult questions of educational policy.” Thus, a student determined to be receiving FAPE in the LRE in one district may find his or her LRE different within another district. This is particu- larly true when the move is also between circuit court jurisdictions (Howard, 2004). These differences in LRE

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46 Intervention in School and Clinic 50(1)

placement are especially a concern for IEP team members when determining what is appropriate for a student receiv- ing special education services (Chinn, 2007; Howard, 2004; Tincani & Pierce, 2007). (For additional information and an overview of the LRE mandate and existing controversy, see Hyatt & Filler, 2011.)

Although the principle of educating children with dis- abilities in the LRE seems very clear, there is much debate as to the definition of LRE and how to implement the prin- ciple in school settings. In the literature, there appear to be two opposing ideologies concerning the LRE. One holds that the LRE is always the general education setting. The second ideology holds that the LRE is the setting in which a child’s needs can best be met. Varying beliefs of IEP team members may lead to differences in how each views the educational placement of a student and may also lead to unintentional violations of the LRE principle. In this article, we present a brief review of both ideologies, presenting common ground within the opposing views and providing teachers with strategies for applying the principle of the LRE in the school setting.

The Two Ideologies

Always in the General Education Setting

In the preamble to IDEIA (2004), Congress noted that research has demonstrated that having high expectations for children results in greater educational gains (§ 601[c][5] [A]). In the legislation itself, IDEIA requires that children with disabilities be educated with children who do not have disabilities “to the maximum extent appropriate” (20 U.S.C. 1412[5][B]). For those who believe that the LRE is always the general education setting, IDEIA clearly indicates that the congressional intent was that the LRE exists only within the general education setting. Within the special education literature, supporters of the ideology that general education is always the LRE argue that misinterpretation of the spe- cific language in the federal laws has convoluted the true meaning of the LRE. Additional justification for this ideol- ogy is based on federal regulations. Federal regulations on the LRE require that the removal of a student from a general education classroom must be justified (Hyatt & Filler, 2011; Rozalski, Stewart, & Miller, 2010). Placement in the gen- eral education setting needs no such clarification. Furthermore, Hyatt and Filler (2011) contended that in Board of Education of Hendrick Hudson Central School District v. Rowley (1982), the FAPE mandate was intended to provide special education students with equivalent learn- ing opportunities and ensure that their services had educa- tional benefit. According to this view of FAPE, students have the intrinsic right to be educated alongside same-age peers who are developing typically (Hyatt & Filler, 2011; Rozalski et al., 2010).

Also supporting the view that the LRE is always in the general education setting are the regulations requiring the development of a continuum of alternative placements (CAP) in each school district (Individuals with Disabilities Education Act Regulations, § 300.551[b]). The CAP begins with the general education classroom and moves from the least restrictive setting to the most restrictive setting (Hyatt & Filler, 2011; Jiménez, Graf, & Rose, 2007; Rozalski et al., 2010; Rueda, Gallego, & Moll, 2000). Thus, the logical assumption on the basis of the CAP is that the least restric- tive setting for all children is the general education class- room. Once the general education setting is considered the LRE, any further restrictive placement considerations along the CAP should focus on the appropriate identification of supplemental aids and services needed to support students within the general education setting (Jiménez et al., 2007).

Where the Child’s Needs Can Be Met

The opposing ideology in the literature defines the LRE as placement in a setting where a student’s needs can be met. Again, this ideology has a legal basis. As current legislation and regulations stand, the IEP team is responsible for deter- mining what the LRE is for each student (Howard, 2004; Valentino, 2006). Under IDEIA, services must be provided in the LRE. However, services are based on individual needs as opposed to the type of disability. Although IDEIA clearly suggests the general education setting whenever possible, the LRE for each child is determined by the pro- fessional judgment of the IEP team (Palley, 2009).

Under IDEIA (2004), children with disabilities are to be educated to the maximum extent appropriate with their nondis- abled peers, suggesting that the LRE is different for each child. The Supreme Court has demonstrated a preference for inclu- sion (Board of Education of Hendrick Hudson Central School District v. Rowley, 1982). However, IDEIA also requires that schools meet the individual needs of children with disabilities. Children should not be placed in general education settings unless the IEP team determines that it is their LRE. In Roncker v. Walter (1983), the Sixth Circuit Court of Appeals ruled that when the same benefits could feasibly be provided in a public school, a segregated school is inappropriate. The school dis- trict was allowed to consider cost as a factor, even if the segre- gated services could provide superior educational services. In the Eight Circuit, the ruling in Mark A. v. Grant Wood Educational Agency (1986) supported the use of a segregated classroom as the LRE for a child. Again in the Eighth Circuit, the court found in A. W. v. Northwest R-1 School District (1987) that the school district was providing education in the LRE because of the marginal benefit provided by placing A. W. in an environment with nondisabled students to the “maxi- mum amount possible.” Thus, both Eighth Circuit Courts sup- ported the use of a segregated setting for students with disabilities on the basis of the marginal benefit accrued from

Marx et al. 47

public school placement, and both agreed that the decision should be left to the local school district.

Common Ground

After eligibility has been determined for a student, educa- tors will have knowledge of

•• the student’s areas of strength, •• present levels of academic achievement and func-

tional performance, •• the student’s educational needs, •• assessment results, and •• perspectives of students and parents.

This knowledge informs the development of a student’s IEP (Patterson, 2005), which in turn informs appropriate place- ment decisions (Yell & Katsiyannis, 2004). Although the debate over the definition of the LRE is contentious, there are similarities between the ideologies. Professionals on both sides of the debate

•• support the general principle of inclusion, •• believe in meeting the needs of the child, and •• strive to provide a free appropriate education to

students with disabilities.

The controversy lies within the lack of a clear definition of the LRE. If the members of IEP teams do not believe that the LRE is the general education setting, are they at risk of not considering the general education setting as the first option? Some believe that the CAP guides IEP teams in determining the LRE, with planning always starting at the top of the continuum (the general education setting). If they are accurate in their beliefs, they believe that the risk of violating the LRE is minimized. Regardless, the special educator is often the team member most versed in IDEIA and the impact of the LRE on meeting the needs of children with disabilities. Therefore, special educators are ethically responsible for interpreting the LRE mandate and for guid- ing IEP teams in developing IEPs that meet those mandates. However, in some situations, administrators and school dis- trict representatives may overrule the information and rec- ommendations presented by the special educator.

Strategies to Guide the IEP Team

Following are strategies special educators can use to guide an IEP team that enable legal and ethical compliance with the LRE mandate.

Strategy 1: Understand Case Law

Federal and circuit court decisions provide guidance and direction on implementing the principle of the LRE. Rozalski et al. (2010) provided an excellent overview of

LRE case findings and introduced the resulting guiding principles of each case finding. The three most commonly known are the Roncker Portability Test, the Daniel Two- Part Test, and the Rachel H. Four-Factor Test. The Roncker Portability Test guides an IEP team to consider a nonsegre- gated setting (i.e., general education) if it appears that a seg- regated setting is being considered. IEP teams must consider the feasibility of providing the same services in the nonseg- regated setting. The Daniel Two-Part Test requires an IEP team to consider the general education setting with supple- mental aids and services and integration into the general education setting to the greatest extent possible. The Rachel H. Four-Factor Test requires an IEP team to consider the benefits of placement in the general education versus a spe- cial setting, the impact of placement in the general educa- tion setting on classmates, and the cost of placement. Table 1 provides a checklist of guiding questions that can be embedded into IEP discussions.

Strategy 2: Embed These Guiding Questions

During the introductory phase of the IEP meeting, tell the IEP team that you will be using a checklist to guide the team in determining the LRE for the student. This checklist will consist of questions that will assist the team with following the requirements of IDEIA when identifying the appropriate placement for the child. Whenever possible, embed the questions into the natural flow of the discussion so that the team can feel supported in its decision-making process. As a precaution, the special educator should share the LRE checklist either before or during the meeting with the local education agency representative before utilization with the IEP team. The goal of the checklist is to provide a frame for team members to use in selecting an appropriate environ- ment in which the student with disabilities will be receiving an appropriate education through the use of supplement aids and services. The checklist should not be used as a means to question the intent of the IEP team; it should be used to guide discussion.

Strategy 3: Start With General Education

When determining placement, IEP teams should consider the possibility of the general education setting (Hyatt & Filler, 2011; Yell, 2012). From that point, teams need to examine the next setting on the CAP. Each setting should be considered individually, without skipping over a placement option (Rozalski et al., 2010; Yell & Katsiyannis, 2004). When examining a potential setting, the team should con- sider the environment augmented with supplemental aids and services before accepting or rejecting the setting. According to Yell (2012), supplementary aids and services encompass a broad range of options for use in the general education setting. By meeting the federal requirement for using supplementary aids and services, a child with a

48 Intervention in School and Clinic 50(1)

Table 1. Least Restrictive Environment Checklist.

Questions to Ask Appropriate Time to Ask Case Law

1. Can the student be educated in the general education setting? If not, why not?

As soon as placement discussion begins Greer v. Rome City School District (1991); Oberti v. Board of Education Clementon School District (1993); Hartmann v. Loudoun County Board of Education (1998)

2. Can the student receive an appropriate education in the general education setting with supplemental aids and services? If not, why not?

When considering the general education setting

Daniel, R. R. v. State Board of Education (1989)

3. What supplemental aids and services would be necessary for the student to be served in the general education setting?

When considering the general education setting

Daniel, R. R. v. State Board of Education (1989)

4. If the student is educated in the general education setting, how will the placement affect others’ learning?

When considering the general education setting

MR v. Lincolnwood Board of Education (1994)

5. Are there any negative impacts of the child’s being educated in the general education setting?

When considering the general education setting

Sacramento City Unified School District Board of Education v. Rachel H. (1994)

6. What are the social benefits of being educated in the general education setting?

When considering the general education setting

Sacramento City Unified School District Board of Education v. Rachel H. (1994)

7. What are the costs of general education placement? Are they well beyond what is feasible for a school district?

When considering the general education setting

Sacramento City Unified School District Board of Education v. Rachel H. (1994)

8. Is the student making adequate progress? Do the student’s supplemental aids and services need to be adapted?

If the student is already placed in the general education setting

Clyde K. v. Puyallup School District (1994)

9. Could the services feasibly be provided in the general education setting?