Monday, May 30, 2011

Does FAPE trump LRE? Trick(y) Question

Special needs education transport services in ...Image via Wikipedia
 My most recent post in the Special Education Law 101 series now running on the blog concerned least restrictive environment.  LRE is one of the most misunderstood concepts in the field of special education law. Some people in audiences where I have given speeches are amazed that the words "inclusion" and "mainstreaming" are not in IDEA or the regulations. 

Mainstreaming is a movement or a goal, but not a legal requirement.  There is clearly a preference for mainstreaming under IDEA, but it is not required that every child be in a regular education classroom. The requirement is the least restrictive environment appropriate for an individual child.

Last summer I was on a panel at a conference addressing this issue, and the question was asked does the FAPE requirement trump the LRE requirement?  The panel agreed that FAPE does trump LRE.  I need to revise my answer in retrospect.  FAPE does not trump LRE.  FAPE trumps inclusion if they are in conflict.  But FAPE and LRE cannot technically be in conflict, because the LRE requirement only requires mainstreaming to the extent that it is appropriate for the child. If a child cannot be successfully educated in the regular classroom with the use of supplementary aids and services, LRE is someplace else.  So my revised answer is that FAPE does not trump LRE; they stand as the twin towers of special education law!

Any questions?
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  1. Very timely post. Our local PS District began expressing concerns about our son's LRE in IEP meetings. We assumed it was because he was in a non-public special ed school which the PS sent him to 5 years ago and they wanted to stop paying for that placement. Apparently, their attorney must have advised them to also question FAPE by alleging the non-public school is out of compliance with the St Dept of Ed curriculum standards. The PS District even filed a complaint against the non-public school. I think (and I hope I'm right) that the PS District is shooting themselves in the foot. Since the PS District approved the transfer to the non-public school, has approved all annual IEPs and progress reports every year, then the PS District is ultimately responsible for failing to provide FAPE. The PS case manager made it very clear to me that the non-public schools "works" for the PS District in a prior conversation. I expect to be filing suit on behalf of my son if the non-public school is indeed not in line with the state curriculum. But I will be suing the ST Dept of Ed (since they approved the non-public school in the first place) and the PS District, not the non-public school.

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