special education case law update - maase …maase.pbworks.com/w/file/fetch/115210462/butler_maase...

©2017 LaPointe & Butler, P.C., 6639 Centurion Drive, Suite 140 Lansing, MI 48917 (517) 349-4121

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LEAST RESTRICTIVE

ENVIRONMENT

MAASE FEBRUARY 7, 2017

LaPointe & Butler, P.C.

517-349-4121

PART ONE

ATTITUDES AND PERCEPTIONS

REGARDING THE CONTINUUM

SURVEY QUESTION # 1

• I am employed by:

A. A Public School District;

B. A Public School Academy;

C. An Intermediate School District;

D. Other


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SURVEY QUESTION # 2

• My LEA has access to the full

continuum of alternative placements for

special education students at all age

and grade levels;

A. Strongly Agree

B. Agree

C. Unsure

D. Disagree

E. Strongly Disagree

SURVEY QUESTION # 3

• My LEA needs additional options on the

continuum (select all that apply);

A. At the Pre-school Level

B. At the Elementary School Level

C. At the Middle School Level

D. At the High School Level

E. At the Post-Secondary / Transition Level

SURVEY QUESTION # 4

• My LEA needs additional options on the

continuum (check all that apply);

A. For students with learning disabilities;

B. For students with cognitive impairments;

C. For students with significant behavior

challenges;

D. For students with autism spectrum

disorder;

E. For students with visual impairments;

F. For students with hearing impairments;

G. Other (Please specify)


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PART TWO

LRE BACKGROUND

LRE IN GENERAL

• To the maximum extent appropriate;

• Educate students with disabilities with non-

disabled students;

• No separate classes/schooling or other removal

unless:

• Education in regular classes with

supplementary aids and services cannot be

achieved satisfactorily, considering;

• Impact on student with disability

• Impact on other students in classroom

• [34 CFR 300.114(a)(2)].

CONTINUUM OF PLACEMENTS

(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.

[34 CFR 300.115].


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CONTINUUM OF PLACEMENTS

(b) The continuum required in paragraph (a) of

this section must –

(1) Include the alternative placements listed in

the definition of special education under § 300.38

(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.

[34 CFR 300.115]

LRE CONTINUUM • Neighborhood School with General Education

• Regular classroom + supplementary aids and services and a related service

• Special education instruction in regular school setting + general education supported by supplemental aids/services

• Self-contained classroom in a general education facility;

• Self-contained classroom in a separate facility within the district;

• Regional or center program

• Residential facility

• Home-based placement

PLACEMENT DECISIONS

• Made by a group knowledgeable about the student

and the placement options;

• Made in conformity with the LRE regulations;

• Determined at least annually;

• Based on the child’s IEP;

• As close to the student’s home as possible;

• Unless the IEP otherwise requires – where the child

would otherwise be educated;

• Consider the harm to the child and the services they

receive; and

• Not removed from general education solely because

of needed modifications to the curriculum.

• [34 CFR 300.116].


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NONACADEMIC SETTINGS

• In providing access to nonacademic and

extracurricular activities;

• Each LEA must ensure that the disabled child

participates to the maximum extent

appropriate; and

• Must include supplementary aids and related

services;

• That are appropriate and necessary to allow

the child to participate in those settings.

• 34 CFR 300.117].

RONCKER v. WALTER • Nine-year-old student with a severe cognitive

impairment;

• Classified as “Trainable Mentally-Impaired” – FSIQ under 50 - 1 to 2 years old in most skills);

• Neil began his elementary education in special education in general education facilities;

• Data showed at least 18 months of little to no progress in less restrictive setting;

• District proposed a “county” school with focus on CI students;

• Parent initiated hearing and lawsuit.

• Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).

RONCKER

• “The Act does not require

mainstreaming in every case but its

requirement that mainstreaming be

provided to the maximum extent

appropriate indicates a very strong

congressional preference.”

• Roncker v. Walter, 700 F.2d 2058 (6th

Cir. 1083).


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RONCKER

• To overcome presumption must show:

• Student won’t benefit from integration;

• Marginal benefit of integration outweighed by benefits of more restrictive setting which cannot feasibly be provided in the less restrictive setting; or

• Disabled student disruptive force in integrated setting

• Roncker v. Walter, 700 F.2D 1058 (6th Cir. 1983).

PART THREE

LRE IN ACTION

SCENARIO # 1

STUDENT WITH

COGNITIVE IMPAIRMENT


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LRE for Students with Severe

Cognitive Disabilities • In 2011, Ella was evaluated as a pre-schooler and placed in an ECDD

program.

• In May of 2014, she was reevaluated and found eligible for special

education under the category of Cognitive Impairment.

• As part of the reevaluation, Ella was administered the WISC. On 11 of

the subtests, her scaled score was a 1. The remaining subtests were

evaluated at a 2. She achieved a FSIQ of 42.

• The MET report also highlighted significant deficits in speech and

language functioning.

• Ella’s mother is described as supportive, enthusiastic and anxious to

ensure that Ella has an academic experience of a “typical” student.

• Ella is described as outgoing, friendly, happy, social and energetic.

• The IEP Team recommended a placement in a resource room in the

Apple Elementary School operated by the District. She would spend

approximately 10 hours per week in the resource room; the remaining

21-26 hours per week would be spent with her non-disabled peers in

general education.


Cognitive Disabilities • Staff report that in the gen. ed. classroom, Ella has a group of non-

disabled peers that she regularly interacts with and has demonstrated

some limited success in imitating some of their more advanced play

behavior.

• Staff report that Ella is making slow but steady progress towards her

social and academic goals and objectives. She was working on

identifying shapes and colors. The last time Ella was tested she was

able to correctly identify the colors from a set and name all ten colors.

She has also demonstrated some level of consistency in being able to

identify a triangle and star out of set of no more than six shapes.

• Staff report that Ella able to recognize 23 uppercase letters in at least 2

out of 3 trials. She is only able to recognize 15 out of 26 lowercase

letters on 2 out of 3 trials.

• Ella’s mother argues that Ella should be placed full-time in the gen. ed.

classroom with a 1:1 aide and only pulled out to receive ancillary

services.

Is the placement at Apple Elementary LRE for Ella?

A. No. Ella should be placed full-time in the gen. ed.

classroom because she does not have a demonstrated need

for specially designed instruction offered by the resource

room program.

B. Yes. Ella is benefitting academically and socially from

the integration offered by the gen. ed. program but also

needs the academic support offered by the resource room

program.

C. No. Ella should be placed full-time in a CI program

because the social benefits of integration offered by the

gen. ed. classroom are outweighed by the need for more

intense academic support.

D. Yes. Ella is not a disruptive force in the integrated setting

and should be educated with her non-disabled peers to the

maximum extent appropriate.


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Cognitive Disabilities

• In May of 2016, Ella reached the chronological age of a middle school

student. The District held an IEPT meeting to consider a change in

Ella’s placement to a middle school setting.

• The District operates two middle schools – Eagle Middle School and

Lion Middle School. Eagle Middle School is Ella’s neighborhood

school. Both Eagle and Lion operate resource rooms.

• Lion Middle School operates the District’s only middle school CI

program.

• The CI program operated by Lion Middle School has a full-time

teacher, a full-time and a half-time paraprofessional and regularly

scheduled access to ancillary personnel. The teacher and social worker

sometimes co-teach units on social skills. In addition to the above

personnel, the CI program has special materials such as ovens, kitchen

tools, manipulatives, textbooks from lower grades and other materials.


Cognitive Disabilities • At the May 2016 IEP, it is reported that Ella has a sight word vocabulary

of 200 words and reads at a 1.9-2.1 grade level. In math she is able to

successfully add single digit figures.

• Ella was observed by the District’s School Psychologist. She was

reported as not being a problem to anyone and interacting, though not

overwhelmingly, in the gen. ed. classroom. It was also apparent from the

observation that the material being presented was far beyond her grasp.

• Ella also does not demonstrate age appropriate conversational skills and

has difficulty with peer relationships. For example, when Ella wants

someone’s attention, she circles around them repeatedly without

speaking, or bumps into the person whose attention she wants. She also

greets others with the stock phrase, “I like your shoes.”

• The goals developed by the May 2016 IEPT include not only

improvement of academic performance but also development of some

independent living skills. Among the goals of Ella’s IEP is for Ella to

learn to tell time to the nearest 5 minutes, learn to match money

equivalents and coin values and learning to understand when to add,

subtract or multiply.


Cognitive Disabilities • Ella’s mother disagrees with the proposed goals focused on the

development of independent living skills. She argues that it is unfair to

say that Ella doesn’t need access to academics because the staff have

predetermined Ella’s future and have concluded that Ella’s only going

to do something menial with her life. Ella’s mother wants Ella’s

placement to be in her neighborhood school with the kids she lives

with, plays with and goes to church with in the community.

• The May 2016 IEPT proposes a placement in the CI program located

at the Lion Middle School. Ella would spend 3-4 hours per day in the

CI program and the remaining time in general education specials such

as gym, art, home economics, drama and music classes.

• Ella’s mother disagrees and argues that Ella should attend her

neighborhood school, Eagle Middle School, for the entire school day

and be placed primarily in regular education classes, but could be

“pulled out” 1-2 hours a day for intensive individual instruction in the

resource room.


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Is the placement at Lion Middle School LRE for Ella?

A. No. Because Ella should attend her neighborhood school

and Ella’s needs can be adequately addressed in general

education with intensive support coordinated through the

resource room.

B. Yes. Because Ella is eligible for special education and

related services as Cognitively Impaired and therefore

requires the level of support only available in the CI

program.

C. No. Because the proposed placement in the CI program

predetermines Ella’s inability to pursue a regular high

school diploma.

D. Yes. Because Ella was not developing any needed

independent living skills or otherwise benefitting

academically from her placement in general education.

Take Away

• Data-Driven Decision Making

• Progress Monitoring

• Access to Curriculum

• Academic Progress

• Acquisition of Daily Living Skills

• Social-Emotional & Peer Interaction

• “Plateau Effect”

SCENARIO # 2

STUDENT WITH SEVERE

BEHAVIOR CHALLENGES


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Alex is in the 3rd grade. When Alex was in the 1st grade, his

mother, who is hip on the IDEA/MARSE lingo, requested an

evaluation to determine whether Alex may be eligible for special

education and related services as a student with an emotional

impairment (“EI”). At the time, no one disputed that Alex had

suffered some significant trauma due to his witnessing his

father’s brutal death the year before and some other emotionally

tragic events. However, due to Alex’s age, the district denied the

request hoping that Alex would eventually learn to cope. Since

1st grade, Alex’s teachers have, to charitably put it, described

him as a handful. He frequently disrupts that the class. He has

been referred to the office so frequently that there is a space in

the office that both staff and student’s alike knows is Alex’s

“spot” and no one dares enter when he is there. Other than

sending Alex to the office, no other supports have been put in

place to address Alex’s behavioral issues.

Alex is now in the 3rd grade. Staff is at a loss of what to do with

him. He has now been referred for an evaluation to determine

whether he is eligible for special education and related services

as a student with EI. During the course of the evaluation, staff

become increasingly convinced that Alex will likely be found

eligible as a student with an EI. The local district does not

operate an EI program. Given Alex’s level of disruption to the

classroom environment, in anticipation of the upcoming IEP

Team meeting, the local district makes a referral to the ISD-run

EI program. Alex is ultimately determined to be eligible for

special education and related services as a student with an EI.

The IEP Team decides to place Alex in the ISD’s EI program.

The parent argues that Alex’s placement in the EI program

is not LRE and challenges the IEP Team’s placement

determination. Is the parent correct?

Poll the Crowd A. The EI program is LRE for Alex because he is eligible for

special education and related services as a student with an EI.

B. The EI program is NOT LRE for Alex because the local

district has not demonstrated that with sufficient

supplementary aids and services, Alex cannot be successful in

a less restrictive environment.

C. The EI program is LRE for Alex because there is documented

evidence that his behaviors interfere with his learning and the

learning of others in the general education environment and

the local does not operate an EI program.

D. The EI program is not NOT LRE for Alex because he clearly

requires more support than the local can provide through the

resource program and other supports.


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Assume that the IEP Team placed Alex for the majority of his

day in general education classes with up to 10 hours per week of

resource room support. A behavior intervention plan (“BIP”)

was developed for Alex, but no functional behavioral assessment

“(FBA”) was completed. None of Alex’s teachers have reviewed

his full behavior plan but rather a behavior plan-at-a-glance

document provided by his case load teacher. The behavior plan-

at-a-glance document provides pertinent information such as the

fact that food is a motivation for Alex and that he does not like to

be singled out in class. Other than this information, the document

provides no other information as all of the strategies identified

are to be implemented by the school social worker. Based on the

information provided in the behavior plan-at-a-glance, Alex’s

teachers have with fidelity offered him food as a motivator and

limited the instances where he would be singled out in class.

There is no dispute that the school social worker has

implemented with fidelity the strategies identified in the BIP

during her 10-15 minute sessions 2 xs per month with Alex.

Even with this level of support, Alex is continuing to engage in

behaviors that interfere with his learning and the learning of

others. The police have been called on three separate occasions

and it is only December. Alex has been referred to the office on

no less than 15 occasions resulting in 26 days of suspension. Staff

are at a point where they believe a change in placement to the

district’s EI program is warranted and convene an IEP Team to

discuss with the parent. The IEP Team would like to change

Alex’s placement to a full-time placement in the EI program.

If the IEP Team elects to change Alex’s placement as

envisioned, would the change in placement violate the LRE

provisions?

Poll the Crowd A. No. Because the district can demonstrate that it has

implemented the BIP and IEP with fidelity and Alex

continues to be a disruptive force.

B. Yes. Because the district did not conduct an FBA.

C. No. Because Alex is EI, he needs the supports that can only

be provided in the EI program.

D. Yes. Because the district cannot show that the BIP was

appropriate or implemented with fidelity and other

supplementary aids, services and supports should be tried

before moving Alex to the EI room.


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What kind of data do you need?

• Data regarding pattern of behaviors impeding

learning of self or others;

• Data regarding level of disruption to the operation

of the program/school environment;

• Documentation that appropriately addressed

behaviors in IEP process;

• It is not appropriate to continue supports/interventions

the data shows to be ineffective

• Documentation showing implementation of

interventions in IEP and behavior plan with fidelity;

• Enlist the support of outside people.

PART FOUR

IMPLICATIONS AND

LRE CHALLENGES

IEP IMPLICATIONS

• LRE should be discussed and documented in

the IEP and Notice process;

• Okay to compromise LRE for FAPE, but can’t

compromise FAPE for LRE;

• Avoid “phoning-in” or pre-determining LRE;

• Key is faithful IEP implementation data and

progress monitoring (See USDOE DCL

8/2016);

• Multiple hearings involving LRE in Michigan;

• MDE complaint process appears to include

LRE.


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UNIQUE LRE CHALLENGES

• Challenges continue at opposite ends of the

system (preschool and transition);

• LRE applies to preschool programs – USDOE

DCL Letters from February 2012 and January

2017;

• LRE applies to transition programs – USDOE

Letter to Spitzer-Resnick;

• Challenges continue with our most severely

behaviorally disordered students;

• LRE unique nuances for students with hearing

impairments.

FUTURE LRE ISSUES?

• Be careful with language / process regarding

center program and regional program referrals

that appear to predetermine the IEP process;

• Be careful about imposing unnecessary consent

requirements in the referral / placement process;

• Encourage and explore collaboration with other

state and local agencies (Head Start; GSRP;

CMH; DHHS; Vocational Agencies; college,

university and private sector; the Court System);

• Will take time to see how USDOE evolves in new

administration;

• Keep an eye on the Georgia litigation.

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