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Compliance Corner – October 2023

By Cindy Soo Hoo, TAP Consultant csoohoo@ces.org

FAPE in the LRE as Written in the IEP! (Part 2 of 3)

In last month’s edition, we explored the definition of a Free Appropriate Public Education or FAPE. We defined it as the special education and related services that are necessary in order for an eligible student to make progress appropriate in light of his/her circumstances. This is determined after members of the student’s Individualized Education Program (IEP) Team review and consider (among other information) the child’s present levels of performance including their strengths, areas of concern, the goals to be addressed and the progress made by the student.

Now, the IEP Team is to determine in what type of setting(s) those services will be delivered. It’s not the name of a particular teacher’s classroom but a description of the type of setting the student needs. In other words, the members of the team are determining the Least Restrictive Environment (LRE) or placement of the student. In essence, the team is determining the extent, if any, to which the eligible student will not be participating with his/her non-disabled peers.

The Individuals with Disabilities Education Act (IDEA) defines Least Restrictive Environment in 34 CFR §300.114(a) as:

(i) 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 nondisabled; and

(ii) 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 is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

IDEA requires school districts to have available a continuum of alternative placements. This continuum offers options for IEP Teams to consider when determining the extent to which the student may be removed from the regular education setting.

IDEA 34 CFR §300.115 states:

(a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

(b) The continuum required in paragraph (a) of this section must—
(1) Include the alternative placements listed in the definition of special education under § 300.39 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and
(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

When determining the LRE of a student, IEP Teams often consider the opportunities in which a student can be educated in the regular education setting rather than the circumstances in which a student needs to be educated in a setting other than the regular education environment. While this may seem like a very subtle difference, the differences cannot be more glaring. The first scenario assumes the student will be placed in a special education environment while the second scenario starts with the regular education setting(s) and removes that child only as necessary.

When starting with the regular education setting(s), IEP Teams must consider any supplemental aids and services that can be provided that would allow the child to be educated with their non-disabled peers. These might include the use of assistive technology devices, assistance from a para-professional, specialized training for instructional staff, and the utilization of a Functional Behavioral Assessment (FBA)/Behavioral Intervention Plan (BIP), to name a few.

Should these or other appropriate supplemental aids and services be determined to not confer a FAPE, the IEP Team would then consider a combination of regular education and special education settings. IEP Teams should consider recommendations specified in any specialized curriculum to determine if the goals can be implemented entirely in the regular education settings or whether they require other types of environments. The student’s individual goals may be implemented in a multitude of settings. Explore the different environments in which the goals can appropriately be implemented.

IDEA 34 CFR §300.116 states:

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that—

(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 this subpart, including §§ 300.114 through 300.118;

(b) The child’s placement—

(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s 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

The Least Restrictive Environment should not be solely based on the eligibility category(ies) under which the student was found eligible. Instead, IEP Teams should consider the unique needs of the student based on all of the information made available to the members. No two students are exactly the same even though they may be eligible under the same eligibility category(ies). Students present differently, and those present levels are taken into account when determining their individual needs.

Should your school district allow or require drafts of IEPs to be submitted to parents ahead of the meeting, it is important to ensure there would be no appearance of pre-determination when determining the least restrictive environment. As stated above, the LRE is determined annually and is based on the child’s unique needs. This information is taken into account when presented at the IEP meeting. That being said, it is permissible to provide a draft of what the school district may be proposing. In doing so, it is important that parents are provided with the understanding that open discussions will occur at the IEP meeting and that all information, whether existing or new, will be discussed, considered and recorded. Specifically informing parents that nothing is set in stone and documenting those correspondences would be prudent. In addition, it would be important to ensure that each page of the proposed IEP has the word “draft” written on it. Dating the additional information to delineate between what was proposed as a draft and what was introduced at the meeting would also assist school districts in documenting the valuable discussions held at the IEP meeting.

In addition, it is important when informing parents about the reason for the meeting to not appear to have decisions already made. For example, telling a parent the reason for today’s meeting is to discuss the educational needs of their child rather than informing them that the reason for the meeting is to move the child to a different program sends two very different messages. The first example sounds as though the team members will weigh the information and take everything into consideration before decisions are made. The second example sounds as though school personnel have made up their minds prior to the meeting.

Finally, refraining from filling out the Summary of Services, Least Restrictive Environment and Prior Written Notice portions of the IEP ahead of time will also assist school districts in staving off any appearance of pre-determining services and settings for students. These pages indicate actions going forward. Keeping those components blank may provide the parent with the understanding that those decisions will be made at the meeting after careful consideration of all the information.

In sum, determining the least restrictive environment of a student is made after careful consideration of all of the information that IEP Teams have at their disposal. This consideration is made with each and every IEP regardless of the type of services and the type of setting(s) the student was receiving in the past. It is important to ensure all team members have whatever information is available about the child. Then, and only then, can informed decisions be made.

The information included herein is not intended to provide legal advice. Should you need legal advice or guidance on any issue involving special education, please contact the appropriate person for your district.

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