Thursday, May 27, 2010

Special Education Law 101 - Part II Revisited

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Beginning last week, I have been running a repeat series I wrote a few years ago on the basics of special education law, with a few updates as appropriate. This is part two.

Today's post is on the requirement of the least restrictive environment, which along with FAPE is one of the twin towers required by IDEA. People are often amazed when I tell them that the word "inclusion" is not contained in IDEA. Instead the requirement is that a child with a disability be educated in the "LRE." Sometimes our fascination with FAPE overshadows the LRE analysis, but it is one of the key components of the law.


Special Ed Law 101- Part II

The Requirement of LRE (least restrictive environment)

In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when 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. IDEA, § 612(a)(5). See, 34 C.F.R. §§ 300.114 to 300.119. This is known as "LRE."

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether the education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)

The special education law, then, requires that a child with a disability be provided a FAPE (free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child). These are the key legal requirements of special education law.


10 comments:

  1. In my state being educated with non-disabled students means that as long as they are in the same building,but in segreated classes, they are being educated "with" non-disabled peers because they can interact at lunch and recess......

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  2. Many district in VA are pushing inclusion even when it is not in the best interest of the child because they are going overboard with LRE.......We need good in middle

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  3. Thank you Anon & Anon,

    Two different ends of the spectrum.

    I appreciate your comments.

    Jim

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  4. Hi Jim, I am still fighting a school district that has a Cross-Categorical Program that keeps the students totally separated, and in a classroom for 3 hours in the morning with only two 5 minute breaks. Then, the other grade of students is "separated" all afternoon with the same amount of breaks. I had no compliant IEP's all illegal. On a few of the child's IEP's it was stated they were to be mainstreamed into regular Ed classes. I was the Case-Manager and advocated for these students. We were placed on the 3rd floor of a 100 year old building where no ne could be heard. These students all just happened to be Afro- American! The other IEP students were given other means of meeting there goals on their IEP's. All of my students and I mean, all of them, where more than able to be mainstreamed given general Resource support. I notified the State of Illinois, and the US Department of Education regarding this illegal and abusive program on the North Shore of Chicago who's primary classes were made up of children from the Northwestern community. What is written on an IEP is just that- written not implemented. There needs to be Individuals hired from the Board of Education to do "pop" audits of the IEP's and make sure that all is what it should be- I was fired for Advocating for my students and have contacted the newspapers, radio stations etc. for help, not for me, but for the 14 African American, 8th grade students who can barely read, write, nor do a simple math problem! How many do you think will survive staying out of the gang population at the local High School? I have since retired formally from working with emotionally and learning disabled students. I lost both my knees to a Bi-polar student and had them replaced but came back to try and make just a small change in the way the IEP's were implemented and make a positive name to special education for those students who just learn different, After I was gone I found out that this same program had been written up the year before I took the job, for Civil Rights violations. Everything looks good on paper, but who is there to see that what is written on that IEP is implemented, in the best interest of the child? Oh! One last comment IEP"S that are on computer's should be stopped! They are often changed- from what was agreed upon by the team. No hard copies exist with signatures on them. They just disappear. Who supervises the LEA's that sign off on these Individual Education Plans? And lastly, where is the support for teachers such as myself, who speak out and advocate for those children that need the most support, not to be hidden away on a 3rd floor of a 100 year old building.

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  6. Hi Anon,

    Thanks for the comment.

    Jim

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  8. I am having the opposite problem: I am fighting to remove a student from general education classroom to my special education classroom for math only. In my opinion, and I had this student in my general education 6th grade math classroom last year, this student will not learn much if he continues in the general education math classroom. The 7th and 8th grade math classes are co-taught with one of the teachers being a special education teacher. I have not voiced my concerns to her as I am looking for an unbaised opinion of his abilities. I would welcome any suggestions on how to proceed. Thank you! Irene

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  9. Irene,

    Sorry but as an impartial- mediator, hearing officer and state consultant, I cannot advise anybody. Other readers may have some thoughts and the Facebook group is pretty outspoken.

    Jim

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