The Individuals with Disabilities Education Act, (IDEA), statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the “maximum extent appropriate.” This requirement is sometimes referred to as the “least restrictive environment” (LRE) mandate of the Act, and it is one of only two “maximizing” provisions in the entire statute. With this language, Congress intended to protect students with special needs from being ostracized or isolated from the general population and requires that students with special needs be included in the general education population to the greatest extent possible.
Specifically, the IDEA provides that States must have in place procedures assuring that, “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 not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when 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.” See 20 U. S. C. §1412 (5) (B) as implemented by the Department’s regulations at 34 CFR §§300.550-300.556.
Recent Decision Mandates Inclusive Setting for Summer Program
Recently, the Second Circuit Court of Appeals, in T.M. v. Cornwall, 12-4301, held that the Congressional LRE standard applies to extended school year (ESY) services for students who are approved for twelve-month programs and who benefit from the LRE. T.M., a student with autism was succeeding with support in a general education preschool setting during the school year. However, for the summer, the district only offered placement in a self-contained special education classroom and offered T.M. related services only as part of the self-contained classroom experience. T.M.’s parents rejected the summer placement because it was too restrictive and filed an Impartial Hearing. The Impartial Hearing Officer (IHO) ruled in the parents’ favor and the district appealed. The State Review Officer (SRO), who tends to rule in favor of school districts, reversed the IHO’s decision and the parents appealed to the federal district court. The federal district court affirmed the SRO decision. T.M.’s parents then further appealed to the Second Circuit Court of Appeals and received the relief requested.
Like the drafters of the IDEA, the Second Circuit judges who ruled in T.M.’s favor intended to draft a decision that would help the many children diagnosed with Autism and other disabilities who have been approved for a 12-month program and who obtain a meaningful educational benefit from an inclusive environment.
LRE Mandate Can Have Unintended Effect
However, school districts often use the LRE provision against parents. For example, recently, a parent filed an impartial hearing against a school district for failure to provide a free and appropriate education to a student with severe social, emotional and psychiatric conditions whose conditions were exacerbated due to the inappropriate program. His psychiatrist, the district representative and his parent recommended a residential therapeutic placement for him, but the school district would not approve a residential placement arguing that it is not the LRE. The school district then issued a placement at a non-public state approved therapeutic day program although his doctors and other professionals maintained that he would further regress there and that it was not appropriate. Such a position by school districts causes unnecessary delay in providing the student with FAPE, burdensome litigation and extensive costs to both parties that could have been avoided.
In my legal practice, I have encountered several similar situations with regard to students who require specific accommodations, a 1:1 paraprofessional, have severe disabilities, or are diagnosed with Autism, but are high functioning. In these cases, an inclusive environment may not be appropriate because the student will obtain a meaningful educational benefit only if a restriction is provided. A mainstream or integrated setting does not work for all students with disabilities. Each student’s needs are unique and must be treated as such. It is important for school districts, IHOs and legislators to consider that the IDEA limits LRE only to situations when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services can be achieved satisfactorily. A cookie cutter approach can be more harmful than beneficial when applying the LRE provision of the IDEA to a student’s individualized educational program.
The special education team at Littman Krooks LLP has extensive experience advocating for parents of children with various special needs and helping them to navigate the labyrinth of special education law including cases where school districts may use the LRE against the student.
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